Reporter: On November 26, 21, the Supreme People's Court issued the Provisions on Case Guidance. What is the significance of this provision in overcoming the existing phenomenon of inconsistent judicial standards? What is the essential difference between the case guidance system with China characteristics and other countries' precedents?

Hu Yunteng: First of all, the organs that implement the case guidance system are not only the people's courts, but also the people's procuratorates and public security organs. That is to say, there will be three series of case guidance systems in the future, namely, the public security guidance case series, the procuratorial guidance case series and the trial guidance case series, which respectively guide the judicial work of the three organs of the public security inspection law, which is quite different from the cases or precedents in other countries that generally refer only to the court cases.

Secondly, the guiding cases of the people's courts are cases in which laws and judicial policies are correctly applied, judicial justice and judicial efficiency are effectively reflected, and the parties and the public are unanimously recognized, and the legal effect and social effect are organically unified. Therefore, the guiding case must be a case that reflects judicial justice, is praised by the people, and can stand the test of history and practice. It is a fine case and a model case in the case, a model that judges should refer to in their trial execution, a living example to publicize the rule of law, a typical example to establish the rule of law and judicial authority, a vivid material for theoretical research, and a carrier to reflect judicial wisdom and trial experience. This is very different from our usual understanding of foreign precedents, and it is also different from the case guidance system we imagined before.

Thirdly, the guiding cases of the people's courts, by their nature, are a form of explaining laws, more precisely, a form of explaining national laws other than constitutional laws, such as guiding cases on criminal law, criminal procedure law and property law, which actually play a role in explaining, clarifying and refining relevant laws. What needs to be made clear here is that the guiding case plays a clear, concrete and remedial role in the principles, ambiguities and even omissions of legal provisions, not in making laws, but in interpreting them. Therefore, the guiding case is that the judge interprets the law instead of making it, and it is to sum up the law of legal experience instead of creating the law of legal experience.

finally, the people's courts implement the case guidance system, which is to discover, publish, establish and popularize those cases with unique value, and give full play to the unique functions of inspiration, guidance, demonstration and standardization of these cases, so that the majority of judges can pay attention to these cases in time, learn from the judgment methods and legal thinking embodied in these cases in time, and handle cases fairly and efficiently with reference to the practice of guiding cases. Therefore, the fundamental reason for constructing the case guidance system is to adapt to the specific needs of handling all kinds of cases fairly, adhere to the unity of principle and flexibility of law, equality and diversity, and realize the unity of judgment scale and justice of judicial cases.

Exploration and development process of case guidance system

Reporter: When did the case guidance system of Chinese courts originate? What are the characteristics of China's case guidance system?

Hu Yunteng: China's legal theorists and judicial practitioners have developed case studies and explored the construction of a case guidance system for a long time. Since the founding of New China, the Supreme People's Court has attached great importance to the role of cases. Since the early 195s, it has compiled and selected cases to sum up the trial experience and guide the court's trial work. It can be said that the summarized case rules and trial experience are applied as law.

At the beginning of the reform and opening-up, the Supreme People's Court also issued a judicial interpretation of the destruction of military marriage, which opened an attempt to explain the law with cases. Since 1985, the the Supreme People's Court Gazette has published instructive cases. At that time, it was also required that the cases published in the communique should be discussed and determined by the the Supreme People's Court Judicial Committee. This practice marks the actual birth of the case guidance system of the people's court. In the past 25 years, although the practice of discussing cases by the Supreme People's Court Judicial Committee did not persist, both theoretical and practical circles regarded the cases published in the the Supreme People's Court Gazette as guiding cases for reference or research. Therefore, I personally think that 1985 should be regarded as the actual birth year of the case guidance system with China characteristics.

In p>1992, the Supreme People's Court decided to set up China Institute of Applied Law, with the main task of editing Selected Cases of People's Courts for reference by courts all over the country. Soon, the Supreme People's Court and later the National College of Judges began to cooperate with the Law School of Renmin University of China to edit "A Summary of Trial Cases in China". These are the two most influential case works at that time. In the new century, the Supreme People's Court business courts and local people's courts at all levels also attach great importance to editing and publishing guiding cases. At the same time, the number of case works, teaching materials and reading materials compiled and published by experts and scholars is increasing day by day, forming a situation in which case studies are flourishing and fruitful.

The case study at this stage has played the role of analyzing the law with cases, enriching the law with cases and popularizing the law with cases, laying a solid foundation and creating a good atmosphere for building a case guidance system with China characteristics.

main contents of the Supreme People's Court's regulations on case guidance

reporter: what are the contents of the Supreme People's Court's regulations on case guidance?

Hu Yunteng: There are only nine short articles in the Regulations, which mainly stipulate the following aspects:

First, the subject of issuing guiding cases is clarified. At the beginning, it is stipulated that the guiding cases that have a guiding role in the trial and execution of the national courts shall be determined and uniformly issued by the Supreme People's Court.

the second is to list the selection range of guiding cases. That is to say, the referee has taken legal effect and meets one of the following conditions: 1. The society is widely concerned; 2, the law stipulates the principle of comparison; 3. Typical; 4. Difficult or new types; 5. Other guiding cases.

the third is to clarify the working institutions of guiding cases. In order to do a good job in case guidance, the Supreme People's Court has set up a case guidance office, which is specifically responsible for the organization, review and compilation of guiding cases.

the fourth is to clarify the procedure of case guidance. Including recommendation procedures, review procedures, application procedures, discussion procedures and release procedures.

the fifth is to clarify the effectiveness of guiding cases. It is clearly stipulated that the people's courts at all levels should refer to the guiding cases issued by the Supreme People's Court when trying similar cases.

Sixth, the issue of clearing and publishing the guiding cases previously issued by the people's courts was clarified. That is to say, if the guiding cases previously released by the Supreme People's Court meet the guiding case conditions stipulated in the Regulations, they should be re-published; if they are not re-published, they will no longer be regarded as guiding cases.

Deep understanding of some issues

Reporter: Although there are not many contents in the Supreme People's Court's Provisions on Case Guidance, it has aroused great concern in the society. Many experts and scholars think that the words "similar cases", "should refer to" and "have guiding function" in the provisions are somewhat vague. Some judges have also suggested that since the "Regulations" refer to it, it is not necessary to implement it, and conditional exceptions should be allowed. What do you think of these different views and suggestions?

Hu Yunteng: After the promulgation of the Regulations, some questions have arisen in the theoretical and practical circles when understanding the relevant contents of the Regulations. The Supreme People's Court is drafting the detailed rules for the implementation of the Regulations to clarify some unclear issues. Here, I only talk about some unclear issues in the Regulations, which do not represent the opinions of the Supreme People's Court Research Office, let alone the Supreme People's Court, and are purely personal understanding. The purpose is to arouse people's thinking and help us draft the detailed rules for future implementation.

first, how to understand "similar cases". This problem is complicated and needs further study. My understanding is that similar cases are similar or identical cases. Including cases with similar behaviors (such as using false litigation to defraud other people's property or using the Internet to slander others), cases with similar nature (such as cases with the same charges and the same civil cause) and cases with similar disputes (that is, cases with the same controversial issues, such as the understanding and identification of the same commodity in intellectual property cases). Similarity here refers not only to similar results, similar amounts or some other similar plot.

the second is how to understand "reference". My understanding is that reference means reference and compliance, that is, judges can refer to the judgment methods, rules, legal thinking, judicial ideas and the spirit of the rule of law used in guiding cases when trying cases and dealing with dissimilar cases. When dealing with cases similar to the guiding cases, we should follow and follow the judgment scale and standards of the guiding cases.

the third is how to understand "should refer to". Should be a must. When trying similar cases, judges should refer to guiding cases, and if they fail to refer to them, there must be convincing reasons; Otherwise, without referring to the guiding case and explaining the reasons, the judgment is quite different from the guiding case, and the judicial justice is obviously lost, which may be an unfair judgment, and the parties have the right to appeal and appeal.

fourth, whether the judgment documents can cite guiding cases as the basis of judgment. The Regulation is not clear, and there are three views on it, one is that it can be cited as the basis of the referee, the other is that it cannot be cited, and the third is that it can be cited as the referee's reasoning. This requires specific research and comments. My personal opinion is that, considering that the guiding case was discussed and decided by the the Supreme People's Court Judicial Committee, it has the nature and function of explaining the law and guiding the judgment. Therefore, it can at least be cited as a referee's reasoning.

the fifth is the form of guiding cases. There is no provision in the Regulations. After comparing and studying relevant cases and precedents at home and abroad, we initially assume that it will take the form of four parts. The first part is the first part, including the number, name and type of guiding cases. It is suggested to adopt the method of "legislation" plus year, case type and serial number, such as "Wang's cash withdrawal by credit card constitutes an illegal business case, Law (211) No.1"; The second part is the guiding points, mainly summarizing the guiding value and function of guiding cases; The third part is the introduction of the case, mainly summarizing the facts and evidence of the case; The fourth part is the judgment results and reasons, mainly summarizing the judgment results and sufficient reasoning of guiding cases.

the sixth is the work and release mechanism of guiding cases. We are drafting the recommendation standard and specific standard format of guiding cases. The preliminary consideration is that in order to do a good job in case guidance, it is necessary to give full play to the enthusiasm of local people's courts at all levels and the Supreme People's Court, within and outside the court system, and establish a working mechanism in which theoretical and practical circles support each other and the four-level courts are connected with each other.

As for whether local people's courts such as the Higher People's Court and even relevant business departments can publish and edit cases, the Decision is not clear about this, which is a matter of great concern to lower courts and relevant parties. In this regard, the the Supreme People's Court Judicial Committee has made it clear in the discussion that after the implementation of the case guidance system, the higher people's courts can sum up the trial experience of cases and publish cases for the courts in their respective jurisdictions to refer to. At the same time, all business courts and institutions in the Supreme People's Court can continue to edit and publish guiding cases, but they shall not be called guiding cases, and shall not conflict with the guiding cases issued by the Supreme People's Court, and shall not have the effect of reference.

In short, the case guidance system established in the Regulations is an important part of Socialism with Chinese characteristics's judicial system and an important achievement of judicial reform, which is of great significance for realizing fair, efficient and clean justice. The establishment of this system depends on the concerted efforts of the theoretical and practical circles, and it needs the concerted efforts and mutual cooperation of the theoretical and practical circles to make good use of this system and make it work effectively.