Research On The Problem Of Judges In Citing Guiding Cases Explicitly

The Guiding Cases System has played an increasingly important role in judicial practice in recent years,and the Supreme People’s Court has frequently released new batches of Guiding Cases,enriched the content of the Guiding Cases System,and expanded the scope of application of Guiding Cases.However,it is undeniable that the Guiding Cases System is still an immature legal system in China,and its development and evolution history in China is less than 20 years,so there are some shortcomings in the system itself and in its application in practice,making it impossible for the system to play its due institutional effectiveness.One of the more prominent and easily overlooked problems is that judges have not implemented the requirement of explicitly citing Guiding Cases.There are three reasons why judges fail to implement the requirement to explicitly cite Guiding Cases.First,the main reason,that is,the judge’s personal factors.Individual judges have a mentality of pursuing benefits and avoiding harm,and for macro judges,there are situations where the micro and upper part of judges’ personal professional ability is insufficient to cite guiding cases.Second,the object cause,that is,the lack of norms such as laws and regulations.In the judicial system,there is a lack of provisions on the mandatory effect of judges citing Guiding Cases,making it "impossible for judges to follow";In the internal mechanism,there is a lack of punitive and incentive provisions cited by judges,which makes some judges less motivated to apply the system.Third,objective reasons,that is,the influence of factors such as the rule of law environment in which guiding cases are cited.In the external environment,the public’s acceptance and satisfaction with the adjudication results of citing Guiding Cases is not high,which has caused great difficulties for judges to interpret the law and reason.Differences in geographical factors affect judges’ citations,and there is a generation gap between economically developed and underdeveloped regions.Therefore,we should try to reduce judges’ subjective resistance,let judges learn the knowledge of applicable systems,have the ability to cite systems,objectively improve the legal normative system cited by judges,and improve the social environment from the perspective of the unity of the rule of law.The perspective of research on Guiding Cases has always focused on the effectiveness of Guiding Cases,but in essence,judges play a vital role in the Guiding Cases system.In judicial practice,judges are the main body that initiates the Guiding Cases system,and it is also one of the key factors in deciding whether to cite Guiding Cases for adjudication,and only when judges implement the requirements of explicitly citing Guiding Cases can the Guiding Cases system be truly applied in practice,and then realize the self-improvement of Guiding Cases in continuous application,so as to achieve a virtuous circle and make the Guiding Cases System truly become a system that promotes the unification of the rule of law.To explore judges’ failure to implement the requirements of explicit citation of guiding cases,it is necessary to start with judges,study the impact of objective factors on them,and comprehensively consider the deepseated reasons behind judges’ evasive behaviors.Resolving the difficult problem that judges fail to implement the requirements for explicitly citing Guiding Cases is conducive not only to improving the guiding cases system and other judicial systems,but also to achieving judicial fairness in practice,thereby promoting the establishment of the rule of law and judicial unification.