China is a typical legal country.

As early as the Qin Dynasty,

Han Fei, a master of legalism, once said, "Legalists,

The constitution is in the hands of the government. "

"method

, compiled by the map, located in the government, but distributed to the people also ",clearly indicating that the law is formulated by the state,

Written and open. Nowadays, as the source of the current laws in China, it is the Constitution, laws, administrative regulations and local governments.

Sexual laws and regulations, autonomous laws and regulations, administrative rules and regulations, laws of special administrative regions and international treaties. Although there is the highest one now

The Bulletin of the People's Court regularly publishes cases and summaries of trial cases in China.

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Selected cases of people's courts

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"Criminal Trial Reference" and other publications have published cases, but because our legislators do not recognize the precedent system, the above

This case is only instructive, not normative and not legally binding.

2.

Throughout the history of our country, precedent was once the source of law.

As early as the Yin and Shang Dynasties, there was a principle that "responsibility is better than punishment", that is, if there is a crime, it will be compared with similar crimes.

A precedent for dealing with punishment. There were "imperial decrees" in the Qin dynasty, that is, the imperial court made an example.

2. 1

The precedent of the judiciary is an established example.

In the bamboo slips unearthed from the Qin tomb in Sleeping Tiger Land, Yunmeng, Hubei Province, "Question and Answer of Law Articles" mentioned "acting in court" many times.

This shows that "substituting the court for the law" has become an example that can be cited outside the original law in judicial practice. In the Han dynasty, sentenced to

The example method has been further developed,

There are "fixed things" and "legal things" in Han Law, both of which are based on things.

The regulation of "Bi", especially Dong Zhongshu's activities of introducing classics into prison, endowed the case law of Han Dynasty with a brand-new era.

The representative characteristics and the principle of judicial activities are integrated into the Confucian legal world view.

In the famous example of the Tang Dynasty,

It also stipulates that "if there is no conviction rule, the guilty person should lift the weight lightly; Guilty people will be dealt with lightly.

Zhong Ming "Since then, the Song Dynasty stipulated that" the law does not contain it, and then use it ",which is the precedent of the case, and Song Hui

Zong added examples. In the Ming Dynasty, laws and regulations were implemented in parallel. "Divided by Daming Law and Grand View, it is still

However, it has followed the tradition of "taking the case as an example" since the Tang and Song Dynasties. In Qing dynasty, the cause of action was flexible, long and dry.

One-year decision: "it is stipulated that it should be repaired once every five years and overhauled once every ten years" and customized later. Later, it was stipulated that "you"

If rules are made, it is not necessary to use laws. "The Qing dynasty did not reform and amend the law, and introduced the western legal and judicial systems.

Dali University has set a lot of precedents.

"The Court Compilation Law" stipulates that "the judgments made by various courts in Dali are

It has legal effect, and the lower court may not plead. "Thus, in the history of China, case law is not written.

The law has a high affinity. Within the framework of statutory law, case law makes up for the loopholes of statutory law and alleviates them.

The conflict between written law and social reality. If the adjustment method of written law is from general to individual, then

The adjustment mode of case law is from individual to general, and the two adjustment modes are organically combined to make the law real.

The unity of nature and applicability is the characteristic and advantage of ancient Chinese legal system.

2.2

Law is therefore regarded as an unfinished work, which must be supplemented by the interpreter, and it must be made up of

The machine operated by man is not a perpetual motion machine operated by himself, so the extension of law becomes open.

about

From a realistic point of view, due to the limitations of "written law", it is aimless and non-GAI.

Sex, fuzziness, and lag ",which led to the relevant departments coming again shortly after we published the written code.

For the gaps and loopholes in the law, it is necessary to introduce legal explanations. In particular, "two highs" is to solve the problem of judicial practice departments.

In recent years, in view of the problems encountered in the application of the law, a large number of judicial interpretations have been issued, but the ways of these interpretations are still

From general to general, from abstract to abstract, it is not aimed at any specific person or thing, and its essence is still being drawn.

Image interpretation is a static interpretation of static laws, which itself is still vague and can only make up for words in a limited way.

The defect of law, the result of its interpretation is still abstract, and the application of law needs law.

Only by further explanation can we master and use it. Moreover, the abstract judicial interpretation of "two highs" often breaks through.

Some of the provisions of the current law even contradict it, which is suspected of quasi-legislation and violates China's constitutionalism.

System. It can be seen that at present, only by strengthening legal interpretation can we not solve the inherent defects of written law.

3.

Based on the history and reality of China society and the development trend of the world legal system,

Construct a precedent system in line with China's national conditions.

3. 1

The effect of precedent

In other words, legislation must first solve two problems. First, the level of effectiveness of precedents in legal sources.

China's current judicial trial is accustomed to the way of thinking from general legal rules to specific cases, and the precedent lies in me.

China's main function will be to explain the law in detail, fill the loopholes in the written law and coordinate the conflicts between legal norms.

So as to make up for the defects of written law. Therefore, the effectiveness level of precedent is located at the level of current judicial interpretation.

Secondly, it is more appropriate, that is, the effect of precedent is lower than that of written law, and it must not violate the constitution, laws and regulations.

When trying a specific case, a judge should try to make a judgment based on the existing legal norms, only when there is no

Only when the legal basis is established can we follow the precedent or create a precedent to make a judgment. Second, precedents are mutual.

The validity of the relationship. That is, we are familiar with the principle of "following precedent", which is exactly what the precedent system can achieve.

The value of existence, which means, "when the court makes a judgment on a case, the court and

When handling a case similar to this case, the lower court must make a judgment according to the judgment of this case. So,

Once the court makes a judgment on a matter, the lower court must abide by it. "But the High Court

When the precedent of a case is "because of ignorance" or "the rules are invalid", it is not necessary to "follow the precedent".

3.2

Publication of precedents

That is, legislation should solve the problem of who sets a precedent. Some scholars believe that local courts have no right to issue precedents and opinions.

In order to maintain the authority of precedent and the unity of law, the publication of precedent can only be unified, not multiple.

Yuan, that is, it can only be issued by the highest judicial organ of the country, just as judicial interpretation can only be issued by the highest judicial organ of the country.

Unify and make it the same. "The author disagrees with this view. On the contrary, the law should authorize the courts above the intermediate level to issue them.

The reasons for precedent are as follows: First, the biggest difference between precedent and legal interpretation is that legal interpretation is abstract.

Precedent is a kind of concrete explanation, which fills the gap through the handling of specific cases and makes the legal norms concrete.

It is inevitably influenced by time, space and human factors, and has strong personality characteristics; Second,

China is a big country with extremely unbalanced political and economic development, with different natural, geographical and social conditions.

The world is very different, which requires the establishment of a multi-level precedent system to adapt to this national situation; Third, the intermediate court.

Jurisdiction is a relatively independent administrative region in nature, society, humanities and geography, and it is a political and economic document.

It is the closest and most compatible isomorphism, and the intermediate court is the court of second instance with high quality judges.

Quality and material equipment conditions, it is appropriate to issue precedents to guide judicial decisions in the region; Fourth, if

Only the Supreme Court can be used as the issuing court of precedent, which will not only greatly improve the operation of precedent system.

In this way, the efficiency of the precedent system is reduced, which is not in line with the national conditions and cannot give full play to the role of the precedent system.

Utility; Fifth, the publication of precedents by courts above the intermediate level will not undermine the unity of the national legal system, because precedents

It is the legal application of specific cases and reflects the differences of social and economic development between regions. For example, including

The compensation standard for personal injury cases caused by road traffic accidents in Qinghai is definitely lower than that in coastal areas.

The same type of case happened in East China.

3.3

Making and screening of precedents

That is, legislation should solve the problem of how precedents come into being. The author believes that the precedent system is based on excellent judgment documents.

Based on.

3.3. 1

Establish a Chinese-style precedent system,

Its first task is,

Speed up the reform of adjudication documents,

carry

The judgment documents are of high quality.

The focus of the reform is to strengthen the analysis and authentication of disputed evidence in cross-examination and enhance the rationality of judgment.

Promote judges to elaborate the process and conclusion of legal reasoning in detail and completely when making judgment documents,

And maintain the integrity, coherence and logic of the document structure in form.

3.3.2

After a judgment document full of legal arguments is made, not all of them can be regarded as "precedents".

This requires a screening process.

Its standards are: in terms of formal elements, it should be typical, that is, representative; In the reform movement

New types of cases that are difficult to apply the law in the publication; The legal issues of the case are controversial; situation

The referee must have taken effect, etc. In terms of substantive elements, it should have the content of legal interpretation. In essence, precedent

It is a "concrete legal interpretation" and a comprehensive understanding of legal norms based on the facts of specific cases.

The explanation and application are highly targeted. Because of this, judges can learn from the concrete examples shown in the precedents.

Enlightened, accurately grasp the spiritual essence of legal norms, and then accurately abstract and blur legal principles.

Applicable to specific cases. However, the problems that need to be explained in case law may come from the ambiguity of legal norms or texts.

The word is inconsistent with the legislative intent, or there is a conflict between different applicable legal norms, or the law lacks specificity.

Provisions on issues, etc.

3.4

Application of precedent

It is the requirement of universal justice to treat the same cases equally, as Cardoso said, "For example,

If a group of cases involve the same points, then all parties will expect the same judgment. if

It is extremely unfair to judge these cases alternately on the basis of the principle of opposites. if in

Yesterday, in a case, the judgment was unfavorable to me as a defendant, so if I were the plaintiff today, I would.

I expect the same verdict in this case. If not, a feeling of anger and injustice will rise in my chest; that

This will violate my substantive rights and moral rights. "Therefore, legislation should stipulate the application method of precedent,

That is to say, the process of applying precedent is a process of analogical reasoning, and the main points of pending cases must be compared with those in precedent.

Comparing the main points and finding out the essential legal rules are not mechanical differences.

With the process, it is not only a "comparative" science, but also includes the art of interpretation, extracting the original text from the case.

The art of. Usually, an unresolved case may need to collect several cases to find out the legal rules.

Then, finally, make a judgment according to the legal values of fairness and justice.

3.5

Clean up and abolish precedents

The legal rules established by precedent are a scientific summary of the practical experience of judicial organs. Once passed by the legislature

The precedent is confirmed and fixed in the form of statute law, which realizes the transformation process from justice to legislation, which makes

Life is complete. Or the superior court has made a new precedent contrary to the result of the precedent, then detention will also be lost.

Binding force is replaced by new precedent. Therefore, legislation should stipulate that institutions that publish precedents must be prompt.

Clean up the original cases and publicly abolish invalid cases to the public.

The author hopes that with the deepening of judicial reform, the present situation of single written law in China can be highlighted.

Rest. The introduction of precedent, the product of human empiricism philosophy, will weave the rigor of society with written law.

The "French Open" has promoted the development of China's legal system and the construction of a socialist country ruled by law.