This article mainly focuses on:
my country's " case law " and Anglo-American legal system , as well as the limitations of my country's actual conditions on the introduction of the case law system.
01. my country's "case law" is insufficient but it is becoming increasingly important!
China's case law system refers to the precedent of statutory law as the main source of promulgated by the Supreme Court as the informal legal source . This is the that we often encounter in the news. The Supreme Court guidance case .
The Supreme Court and all subordinate courts take the principle of " treat the same situation" and are subject to the guiding cases and can also be cited in similar cases. This is used to supplement the limitations of interpretation into statutory law.
In judicial practice, criminal cases are based on Criminal Code as the benchmark, and civil cases are based on Civil Code
as the benchmark. At the same time, shall not violate public order and good customs , that is, law and customs source is the principle adhered to by the written law country.
But in judicial practice, judges often do not act in accordance with the above provisions, but instead show signs that "follow the precedent" . This is closely related to our country's relevant rules of interest.
First of all, The judgment cases of the Supreme Court or the superior court have the characteristics of "authoritative" . The subordinate judges have to be affected by it. Who would be willing to take the risk to overturn the superior's decision? Doesn’t this mean asking for trouble and adding obstacles to your own promotion path?
Secondly, when a judge encounters a case, the full review will consume a lot of energy. If there are previous similar guiding cases at this time, reference precedents often achieve twice the result with half the effort, which can be said to be a "lazy" to reduce independent thinking.
02. The inherent disadvantages of statutory law
Criminal law in can also apply to all statutory law. The statutory requirement that the law has clearness and predictability, and rather than ambiguity, which is also the basic feature of the law. The fundamental value of the
method is fairness, which contains formal justice and substantive justice. Formal fairness provides guarantees for realizing substantive justice, and an important manifestation of formal fairness is to clarify and rationalize laws.
statutory law actually formulated a code of with wide coverage based on past experience summary and traditional habits. With rationalism as the support, a perfect law was created through rational deduction .
This determines that the code has the stability, universality and certainty of , but based on the characteristics of the fact that the code itself cannot cover all aspects, and lacks the necessary speciality, adaptability and flexibility.
This nature of the statutory law means that the code cannot be modified at will. Once it can be changed at will, it will seriously weaken the authority of the law. However, society is constantly developing and changing, and new situations continue to emerge, which is its inherent disadvantage!
Aristotle In Political Science, said: "The rule of law should contain two meanings: established laws are universally obedient, and the law itself should be a good law.”
03. The social fundamentals of our country are difficult to accept the case law
It is understood that people who do not agree with the implementation of case law believe that our country's social fundamentals is a chronic disease:
- has a vast range of ethnic groups, and the situation is particularly complicated. It is difficult to align the general standards of
- The content of the judgment is limited, only The facts and content of the text , lack of in-depth value analysis and theoretical explanation
- legal publicity task has not been fully realized, civil society need to be improved
In-depth changes in the situation and reform have brought about earth-shaking changes, and the complexity of the cases faced by the judiciary also suddenly increased. At this time, simple and general legal provisions cannot adapt to new cases, so the judge had to explain it.
Such explanations should be The most important thing is that the principles based on and the values reflected by should be loaded into the judgment, becoming the essence of thought that everyone can see, and truly understand the position represented by the law. The greater the impact of
, the more detailed the case, this not only reflects the openness and transparency of , but also a legal publicity activity that is very effective , and at the same time, the authority of the judges will be consolidated.
A necessary prerequisite for the implementation of the case law is to have the "Compilation of Precedents" authoritatively published by . is mainly used to collect representative cases, and not all previous cases can be used as a reference precedent.
This task is authoritative and authentic only by relevant agencies to complete it. It is also conducive to the learning and reference of other members of the legal community. How to perform this task is also a difficult problem.
I believe that in the process of promoting the rule of law, the subject is always a citizen. The case law system is an inevitable requirement of the rule of law thinking, because for the subject, living experience is far better than "dead" rationality.
