Study On Judicial Application Of Guiding Cases

In 2010,the Supreme People’s court began to issue guiding cases.It plays a unified judicial application,legal interpretation and other functions in judicial practice.People also have high expectations for guiding cases to guide judicial practice.However,there are still some problems about the role of guiding cases in judicial practice and how to better promote the application of guiding cases.There are still some problems in the application of guiding cases,such as unclear reference effect,invisibe citation,and dulty in judging similar cases.In order to solve the above problems,in the judicial application is promoted form the perspective of expansion of legal source theory,the reference of similar cases and the perspective of legal methods.The case system Anglo-American law system and the precedent of continental law system have existed for many years and have played a good role in judicial operation,and have similarities with the process of judicial application of guiding cases.Drawing on the methods of judicial application of extraterritorial related systems,it is proposed to improve the selection criteria of guiding cases and increase the rationality to promote the judicial application of guiding cases.In addition,for the current problems in the judicial application of guiding cases,the legal source effectives of guiding cases should be strengthened by strengthening the legal source authority of guiding cases and clarifying the legal consequence of non-application,so to solve the problem of limited judicial application due to lack of formal legal source status of guiding cases in judiciary and ensure the judicial application of guiding cases.we should also reflect on and improve the judicial application of guiding cases by increasing on the obligation of the judge to expressly invoke and reflecting the reference standards of similar cases,we can ensure the judicial application of guiding cases,establish a training mechanism for judges to apply guiding cases,and improve the ability of judges to apply guiding cases.