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A Study on Judicial Application of Guiding Cases in Mainland China - On the Basis of 118 Civil and Commercial Cases in 2017

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2018, (23), pp.147-170
  • DOI : 10.31839/ibt.2018.12.23.147
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law
  • Received : September 27, 2018
  • Accepted : October 27, 2018

WU JIANPING 1 ZHANG XIAO 1

1西南政法大学

Accredited

ABSTRACT

In 2010, the case guidance system was formally established in Chin a,which is a great-leap-forward development of the orientation and application of previous cases in our judicial practice. After the establishment of the system, the Supreme People's Court (hereinafter referred to as SPC) made it clear that judges should refer to or apply the guiding cases when deciding similar cases. This clarifies that the guiding cases is actually binding. By December 31, 2017, SPC has issued a total of 92 guiding cases. These cases have not only been published in batches, but also been uploaded to official website by SPC. The case guidance system meets the need of judicial practice in our country and also complies with the trend of the gradual merge of the two major legal systems. In this paper, 118 civil and commercial cases involving in guiding cases in 2017 are selected as the object of analysis, and the judicial practice of guiding cases is studied from both macro and micro perspectives. The macro perspective mainly concentrates on the application of guiding cases in Local People's Court at all levels across the country. The micro perspective focuses on the study of specific judgment documents. From real and concrete data, we can find out the characteristics of the judgment documents, and analyze the problems in the operation of the case guidance system, and put forward feasible suggestions to improve the system.

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