“有心栽花花不發”——指導性案例和同案同判研究

Abstract

The Guiding-case System, with the goal of "uniform judicial scale and accurate application of law", was officially launched in November 2010.By March 1, 2019, 21 batches of 112 guiding cases had been issued. This system has been in operation for eight years. How effective it is should be examined. There are many studys on it, including theoretical research and empirical research. However, the previous studies were strongly idealistic and did not pay enough attention to the specific situation of the operation of China's case guidance system. Therefore，these studies are more or less inconsistent with the actual operation of the case guidance system. Based on the guiding cases, this paper conducts an empirical study on the technical details of the cases, hoping to become a new perspective on the Guiding-case System and “Treating Like Cases Alike”.

This paper mainly uses logical research tools to study the application of case guidance system in practice. Structurally, this paper is divided into two parts: the first part introduces the logic research tool -- Exemplary Reasoning of Brewer .The second part uses this method to make an empirical analysis of the Guiding-case System from two levels: the national Guiding-case System and the Reference Case at the high court level.

1.In the first part, first analyzes the guiding case production and operation, points out that the essence of the guiding case is original case format in the security administration within the system, the supreme people's court in an administrative position advantage, in the hierarchical management approach to promote the production of the instructional cases, thus gives the effectiveness of the instructional cases positioning on uniqueness, actually “factual binding”to become the most appropriate definition. Secondly, it analyzes the problem of “Treating Like Cases Alike” in trial practice. This paper analyzes the concrete situation of this issue in trial practice, and points out that “Treating Like Cases Alike” seldom exists in reality, so the so-called “Similar Cases ” (in Chinese it is“same cases”)should be similar case. Finally, the reason for different sentences in the same case is the open structure in the law. In the edge of law, there must be uncertainty and ambiguity of rules. This uncertainty is what Hartecalls the open structure of rules.
As for how to judge similar cases, this paper believes that the reasoning mode of similar cases is attached to the analogy of deductive reasoning. Similarity comparison needs a fulcrum which, in guiding cases，should be the key words and the most important words in the judgment points. The fulcrumare the connection point between the former case and the latter case. This paper introduces Exemplary Reasoning of Brewer to study the similarity of the case. Brewer’s Exemplary Reasoning is:
(1) y has F and G (target case premise)
(2) x has F and G (premise of the source case)
(3) x has H (premise of the source case)
(4) analogy-warranting rule: if an event has F and G and H, then all events have F and G and H;
So y has H.
Through the above discussion, the basic research path and research tools of this paper are determined. The second part is to use this research tool to conduct specific empirical research on different levels of the case system.

2. The second part is the part of empirical analysis, which uses Exemplary Reasoning of Brewer to analyze specific cases of “Treating Like Cases Alike” .The specific logic is as follows:
(1) Cp has Cp = F1+ F2+ F3
(2) GC has GC = F1+ F2+ F3+ F4
(3) GC has J
(4) analogy-warranting rule: if an event has F1 and F2 and F3, and has J, then all events have F1 and F2 and F3, and have J
So Cp has J

In order to cover all levels of guiding cases, this part is divided into two parts, namely the application analysis of guiding cases at the national level and the reference case application analysis at the high court’s level.

The study of this paper shows that at the national level, the number of cases quoting and referring to guiding cases in practical judicial practice is very few, and guiding cases have little influence on judges' judgment. In those limited citations and references, it is far from a precise application. Guiding cases only serve as directional guidance, and have not played an obvious role in the “Treating Like Cases Alike”.

At the level of province (autonomous region, municipality directly under the central government), the application of reference cases varies greatly in each province. And its formulation is quite legislative meaning: when there is a legal vacancy, it can be repaired directly and quickly by issuing reference cases, and its application is not an urgent consideration. As for the regulation of the same case with the same sentence, there is no way to talk about.

This paper thinks that the Guiding-case System has been placed great expectations in uniforming criterion in law application. Despite the original intention to plant flowers, the Guiding-case System has not yet been thriving. On the contrary, due to historical reasons, the trend of judicial reform and the big data wave, other case forms have now become green trees. The case system is bound to exert its influence in the “Treating Like Cases Alike”, but the lag in the application of law at the technical level, the formation of legal community and the training of judicial methods will become obstacles to the application of cases. China should vigorously promote the identification of cases and other judicial techniques, so as to help the case reference become a good medicine for the issue “Treating Like Cases Alike”.

Date of Award	26 Mar 2020
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Xin Frank HE (Supervisor) & Guobin ZHU (Supervisor)