There are often two situations to seek legislative breakthrough through judicial precedent: one is that although the written law is not clear, it still has a general framework. For example, the court held that a person who knows and buys fakes does not belong to consumers, because the legal provisions are unclear, and this determination is reasonable within the legal limits; The other is that the written law not only has no provisions, but even a slight breakthrough is suspected of "crossing the line". For example, compensation for mental damage in criminal cases, the criminal procedure law stipulates that the victim has the right to file an incidental civil action for material damage. In a sense, the law does not seem to explicitly deny or exclude mental compensation. Then, is there a judge who dares to be the first person to "eat crabs" and explicitly order the defendant to compensate the victim for a certain amount of spiritual comfort in criminal cases? This issue can be said to have a certain basis of public opinion. It is impossible for the victim to suffer serious personal injury without mental damage, but there is no ready-made provision in law, which makes it difficult to support in judicial practice. There is even a miracle that lawyers price the hymen of the victim girl at 200,000 yuan for material compensation. Therefore, it is really important that such a "cut" cannot be opened. At present, China's legal system is not perfect, and the law itself is not GAI and backward, so citizens often urgently need this kind of case law protection system full of humanistic care and pragmatic spirit. Whether a judge can set a precedent or even create a law is not only a theoretical issue, but also a practical issue of great significance.
From this point of view, when implementing the system of case guidance and precedent judgment similar to case law, or extracting the essence from relevant cases to formulate judicial interpretation, Chinese courts should fully consider the actual judicial needs of the society and the people, and should follow the principle of prudent and pragmatic judicial reform. Some people argue that only the Supreme Court has the right to create or compile precedents, but in fact, there are not many cases that can really be tried by the Supreme Court, and if all the cases that have been concluded and come into effect are selected from lower courts, it is equivalent to acquiescence in their creation. Therefore, the author believes that in order to absorb and utilize the essence of modern judicial precedent system reasonably, on the one hand, we should give full play to the role of judicial interpretation and timely issue judgment rules with universal guiding significance; On the other hand, it is best to regulate precedent-setting behavior through the research system of submitting suspicious cases. In other words, when a court below the Supreme Law encounters a complicated case that is difficult to decide, it should directly submit a research reply to the Supreme Law. On this basis, the lower courts will still make corresponding judgments, which will be of reference value to similar cases. At present, this practice has been implemented in practice, and the procedure and effect can be further improved. This is more conducive to giving full play to the advantages of precedent in solving difficult problems in time, and can also avoid the possible disadvantages caused by judges' arbitrary use of discretion.
With regard to the vitality of the precedent system, let's review Lord Denning's famous words in the English Law. "If the existing law reveals shortcomings, the judge can't blame the drafter, he must begin to complete the constructive task of finding out the intention of the state, … he must supplement the legal text in order to give strength and life to the intention of the legislature". If there is a legal wrinkle, "the judge may not change the knitting material of the legal fabric, but he can and should smooth the wrinkle."
Moshuai, Beijing Natural Law Firm
⑧
A few years ago, a court ruled that whether double indemnity applied the Consumer Protection Law to buy fakes was widely concerned by the media. In this similar case, the same court made completely different judgments before and after. Faced with this situation, some people argue that we should implement case law.
Precedents, as the name implies, are not much different from cases. However, as a legal term, precedent and case law are in the same strain, that is, the judicial principle of "following precedent". In common law countries, case law often has the same meaning as case law. Its significance lies in that, according to tradition, the previous judgments of the courts, especially the higher courts, should be observed by the lower courts as a norm and principle when trying cases. That is, when the court encounters similar cases as before, it must follow the principles and rules applied in previous judgments. Precedent is binding on similar cases in the future, and the judge's judgment itself has legislative significance and has become an important legal source in common law countries.
There is no precedent in our country. We use a long-standing idiom to call a case handled by a court a case. Not only the names are different, but also the effects are quite different. We practice written law instead of case law, and case law is not legally binding on us.
Some people argue that China should also implement case law, but I don't agree with them. Rome was not built in a day, and the legal tradition of a country is also deeply rooted. Today, we call the correct handling of a case a judgment according to law, and the wrong judgment a judgment without foundation in law. Between the lines, it shows that China is a statutory country, and the handling of cases is based on statutory law, not precedent.
Of course, this is not to say that there is no precedent in our history. In the feudal society of China, there was another law similar to case law called "Example". In Qin bamboo slips, "court disciples" were recorded, and in Han Dynasty, "Bi" was called. After Tang Dynasty, precedents, cases and cases were used as the basis for judging cases. In the Ming and Qing Dynasties, examples were as important as laws, but there was a situation that "examples were impossible and laws became more and more complicated", which led to the consequences of replacing laws with examples and breaking laws with examples, which made "examples" not play a good role in the history of our country and had a bad reputation.
Practice has proved that the case law system is not in line with China's national conditions. At the same time, case law and statute law not only have different legal forms, but also show different ways of thinking. It is not easy for our people and judicial personnel to accept case law.
Just as the written law is flawed and can't fully cope with new situations and problems, the case law also has its own shortcomings. At present, China's socialist laws are still in the process of perfection, and some legal provisions are too principled, too abstract and lack of concrete operation, and judges have various differences in their understanding of applicable laws. In order to make up for the lack of legislation, the Supreme People's Court made a judicial interpretation on the application of law in time, which played a role as a legal source to a certain extent and played an important guiding role in trial practice.
Of course, this does not mean that this case is meaningless. There is a legal proverb that "experience is more important than knowledge". Cases, especially those published in the Supreme People's Court, are of great value as a reference for the court to hear cases, which is conducive to implementing the principle of legal equality under the same circumstances and improving the efficiency of handling cases. It is of great significance to strengthen case study and give full play to the role of cases. Moreover, the differences between the two legal systems are getting smaller and smaller, and it is also the trend of the origin and development of international law to learn from each other and learn from each other's strengths.
"There is no shortage of gold, and no one is perfect." Case law and statute law have their own characteristics and advantages and disadvantages. We can neither blindly exaggerate the role of the case because of the application of written law to judge the defects of the case, nor belittle the role of denying the case because of our application of written law; We can neither blindly worship case law because of the defects in the application of written law, nor belittle our hostility to case law because of our application of written law. Instead, we should respect history, face up to reality, attach importance to cases, actively play the role of cases, and handle cases fairly according to law.
Liu Wenji, People's Court of Minqin County, Gansu Province
⑨
A case refers to a judgment made by a judicial organ on a specific case.
Cases are different from precedents. After the judgment as a case takes effect, it only has legal effect on the parties to the case, and precedent is a major legal source in common law countries. The principle of "following precedent" in common law countries requires that the legal rules contained in a certain judgment are binding on similar cases in our court or lower courts in the future.
Compared with the written law of civil law system, the advantage of case law lies in its ability to adapt to the ever-changing social life to the maximum extent. Social life is lively, colorful and ever-changing. There are inevitably gaps and loopholes in the written law, and new situations and problems appear constantly, which will make the legislation relatively backward. Case law can effectively make up for the above shortcomings of statute law. However, case law gives "judges the power to make laws", which can easily lead to arbitrary judgments and trampling on justice.
Anglo-American law system and civil law system have their own advantages and disadvantages, and any single legal form has traces of trampling on justice. The legal system is perfected in the process of constant pursuit of justice. By constantly learning from each other, absorbing and drawing lessons from each other's strengths, the characteristics of the two legal systems are no longer obvious, showing the phenomenon of getting closer, converging and even merging. In addition to many laws and codes, common law countries have also promulgated a large number of entrusted legislation, and the status of written law is becoming more and more important; Although precedents have no legal status in civil law countries and cannot be quoted in judgments, most judges actually respect precedents very much.
What our country implements is written law. In China's legal system, the legislature granted the Supreme People's Court and the Supreme People's Procuratorate the right to make a legally binding interpretation and explanation on the application of the law in the process of trial and prosecution. Giving the highest judicial organ the power of judicial interpretation is a major feature of China's legal system, which is not only found in common law countries that implement case law, but also in civil law countries that implement written law. In China's judicial practice, judicial interpretation has played an important role in unifying judicial personnel's knowledge and understanding of the law, reasonably limiting judicial personnel's discretion and ensuring the correct application of the law.
Admittedly, the law is important and the criterion of law enforcement, but only when it is applied to cases can it have a practical effect on social life. And trial is not just a simple intellectual activity that applies legal provisions with facts. Judicial workers must actively use the law and analyze specific cases in order to investigate and judge cases fairly. This case is the most concrete and vivid interpretation of the law. In order to help people understand the law correctly and uniformly, China courts draw lessons from the precedent system and gradually attach importance to case compilation. Typical cases collected in the Supreme People's Court Gazette, Selected Cases of People's Courts, Summary of Trial Cases in China and People's Court Newspaper have become important tools to guide judges' trials. However, due to the unclear positioning of cases and the lack of standardized compilation standards and procedures, many cases collected by the media are mixed and the legal interpretations are different, which leads readers to question judicial justice. Therefore, the author believes that China should establish and improve the case guidance system with China characteristics. Divide the cases collected in the media into two categories: one is academic discussion cases, and different people have different views; Let a hundred flowers blossom and a hundred schools of thought contend. The other is a guiding case, in which the supreme judicial organ selects novel, controversial and typical cases according to certain editing standards and procedures, and publishes them in a specific media according to certain publishing methods, so as to realize a benign transition from judicial interpretation to concretization and case-based. Cases published in accordance with the case guidance system have a guiding role in judicial practice. For similar cases, judges can refer to cases in applying laws and discretion. Through the demonstration and guidance of cases, we can standardize the judge's legal interpretation method and legal thinking mode, unify the standard of legal application, and ensure judicial justice.