案例指导制度在我国的完善-法律专业论文.docxVIP

2 摘 要 为进一步完善我国的案例指导制度，必须结合我国的具体国情，借鉴 域外与本地的经验，对指导性案例的创制原则进一步明确，指出指导性案 例具有事实性约束力，并且不具有法律渊源的地位，并对其适用的条件， 援引的规则、模式，排除适用规则，变更与废止以及案例指导制度的配套 措施进行规范，保证案例指导制度的价值在司法实践中充分发挥。 总之，案例指导制度是我国司法改革的重要举措之一，进一步完善案 例指导制度是推动司法进步的必经之路。 关键词： 案例指导制度，指导性案例，司法改革   PAGE 4 ABSTRACT ABSTRACT In China, the concept of case instruction system has been pointed out for many years. However, it actually moved to the practice exploratory stage after the promulgation of The Provisions of The Guiding The Work of Case Studies in 2010. The guiding case, which was issued by Supreme Court in December 2011, has been incorporated the instructive significance firstly. It is a pioneering undertaking in judicial reform of China. At present, the case instruction system is extremely incomplete, such as no clear guiding principle of creating the case, the efficacy of the guiding case need to be further materialized, and the related rules for case, after monitoring mechanism as well as the principles of changing and abolishing also need to be established. Case instruction system is a legal application system. According to the trial management functions, the guiding cases are issued by Supreme Court. The guiding cases are referee cases with legal force, which are established by the proper legal procedures and published by the proper form. Additionally, they have typical meanings of supervision and guiding. The case instruction system is designed to unify legal application, to limit the discretion of the judges, to improve the legal operational and judicial efficiency, and to develop the deficiency of the statute. Obviously, there are differences between case instruction system and the western case law system in aspects of position, nature and purpose. Also, case instruction system is different with judicial explanation. ABSTRACT With the global integration, from the perspective of law, common law and civil law are increasingly going to merge. German and Japan as the mainland legal system countries have precede