On The Application Of Case Guidance System In Our Country

Since the establishment of case guidance system,it has not only been challenged in the theoretical aspects of nature and effectiveness analysis,but also fallen into difficulties in judicial practice.The system cannot play its due value and function due to the serious shortage of guiding cases,the confusion of guiding methods and the low citation rate.It is urgent to clarify the applicable mechanism of case guidance system and seek the guidance of jurisprudence methodology.The practical dilemma of case guidance system reflects the problem of system application.The case guidance system,which is naturally imported from the Anglo-American law system,has always been in a standby position in the judicial practice of our country.Chinese judges have a superficial understanding or even rejection of the applicable logic of case guidance.Different from the applicable logic of laws,regulations,judicial interpretation and other written norms,the case guidance system is the reference and contrast between individual cases,which determines that the internal mechanism of the application of guiding cases lies in treating like case alike.Treating like case alike is the result of rational argumentation in social science,which should be understood as similar cases be decided similarly.The possibility and reality of treating like case alike come from the legal logic of analogical reasoning.Legal analogy is the core theoretical tool to correctly apply case guidance system.Kaufman’s "essence of things" theory starts from the mutual fusion of legal norms and case facts,and accurately grasps the core of legal analogy--the standard of similarity judgment.The theory of "the essence of things" is not an ontological entity,but a kind of correspondence of analogy.The legal reality of legal idealegal regulation-legal judgment is realized by virtue of "the essence of things".In the process of forming factual elements from the perspective of norms and understanding legal norms from the perspective of facts,"the essence of things" is embodied in typed thinking.From the perspective of "essence of things",the application of guiding cases should start from the mutual integration of facts and norms,rather than separate them.On the one hand,the consistency of "the essence of things" between guiding cases and pending cases is the basis for the application of guiding cases.On the other hand,the analogy of "essence of things" specifically points to a kind of typed thinking,which is an open relational thinking.The process of judge applying guiding case is a kind of recognition and reconstruction.