Research On The Judicial Application Of Guiding Cases In China

In order to resolve the plight of different judgments,the Supreme People’s Court began issuing guiding cases in 2011.Through practical exploration and legislative norms,the judicial application of guiding cases has achieved initial results,such as it has played an important role in realizing the fair and just judgment of cases,making up for the lack of written laws and meeting the needs of the construction of the rule of law in China.However,from the judicial practice of more than ten years,the judicial application effectiveness of guiding cases is far less than expected.Theoretical research has found that the nature and effectiveness of guiding cases have not been uniformly recognized since they are applied,and there are many disputes in the academic circle,which directly affects the judicial application effect of guiding cases.Empirical analysis shows that there are prominent problems in the specific application process of guiding cases,such as low reference application rate,non-standard reference,lack of response of judges to the application of guiding cases,and judicial practice beyond the reference scope of guiding cases.Tracing the problems at the theoretical level and empirical research level can find the causes of the problems,such as the vague effectiveness of guiding cases,the narrow application scope of guiding cases,the imperfect application technology of similar cases,the lack of corresponding clearance mechanism and the thinking deviation of judges in the specific application.Through the theory and specific empirical research,find out the guiding cases existing in the process of judicial application,and analyze the causes,thus,can provide the specific application of guiding case in China corresponding perfect Suggestions,such as the effectiveness of guiding cases,increase the content of guiding cases,establish guiding case clearance mechanism,establish high quality class case retrieval platform and improve the application of guiding case cognition,etc.In this way,in order to provide a more practical and effective way for the practical application of guiding cases.