Zhan: on administrative litigation case guidance system

On administrative litigation case guidance system

Zhan

Abstract: case guidance field faces a different system in the different lawsuit. In administrative proceedings, due to the administrative organ, how degree is an important problem of case guidance system is facing the guide case whether has the binding force to the administrative organ and the binding force. Many problems which related to the positioning, guidance to the case of judicial final principle understanding and case selection conflicts between local and universal. At the same time, these problems also affect the response of case guidance system in administrative litigation process.
　　

Keywords: case guidance system; administrative litigation; administrative organ; binding force;
　　
　　

One, our case guidance system overview (1)
　　
In November 26, 2010, the Supreme People's Court issued the "Regulations on the case guidance" (hereinafter referred to as "Regulations"), this indicates that China's court system established formal case guidance system. (2) the case guiding system in China can be from two aspects of procedure and substantive system.
　　

(a) the procedural system
The source case: in fact, if the single from the case itself, guiding case is the court has sentenced verdict, here comes the actual case refers to the "Regulations" recommendation system said fourth and fifth. According to the "Regulations" article fourth, in case the court system, the main source of the Supreme People's court in the trial of business units in our hospital and the local people's courts at all levels in a legally effective judgment recommendation; each higher people's court, PLA military court in our hospital and within the jurisdiction of the people's court has taken legal effect judging by the judicial committee for discussion and the recommendation; basic level people's Court of intermediate people's court, the legally effective judgement by the judicial committee for discussion report recommended after. And in the court outside the system, according to the "Regulations" article fifth, NPC deputies and CPPCC members, experts and scholars, lawyers, and other concerned about people's court trial, the implementation of the work of social people from all walks of life to the people's court has taken legal effect can be recommended to the trial court. Case review: according to the "Regulations", the second set up a special case guidance office, responsible for the selection, review and report the audit case. According to the "Regulations" the first paragraph of article sixth, to meet the conditions of the case, the office shall be submitted to the president or vice president in charge of submission
The judicial committee of the Supreme People's court decision. A case released, compilation and clear: "release form sixth provisions of the second paragraph of the provisions" is: "Gazette of the Supreme People's court, the Supreme People's court" and "people's court news" website. At the same time, according to the provisions of article eighth and article ninth, the Supreme People's court case guidance office each year on the guiding case compilation. For the "Regulations" implemented, the Supreme People's court has issued is of guiding significance to the court trial, the execution of the work in the case, cleaning, compilation, released as guiding cases.
　　

(two) physical system
Confirmation of guiding case and publishing rights: "Regulations" provisions of article first, the case guiding with the guidance of the national court trial, execution, as determined by the Supreme People's court and unified release. From the provisions of this article, "Regulations" power to publish unified guiding case to the Supreme People's court. But it may also bring some problems, which will be discussed later in the paper.
The guide case conditions: "second rules" is about the guiding case condition. According to this provision, is the premise of guiding case is a legally effective judgment, on the basis of this, any one can satisfy the five conditions listed behind a directive precedents. Of course, the provisions of article second of the only substantive conditions, these conditions are satisfied the case shall also go through recommendation, review, decision, announced the procedural conditions can be a guiding cases.
Effect of guiding cases and scope of validity: the contents stipulated in the "seventh rules", "guiding case issued by the Supreme People's court, the people's courts at all levels shall refer to the trial of similar cases." The two extremely vague rules, the range of the "similar" and on the effect of the "shall refer to the" (3), for their meaning, there will not open, will be involved in the discussion below.
　　
　　

In two, the administrative proceedings in the case guidance system
　　
The case guiding system function has been discussed in many literatures, and these are discussed in the "Regulations" of the "objective" was also reflected in (4). But in administrative proceedings, in addition to uniform law applicable in general, safeguard judicial justice, the law enforcement to be specific and so on. In addition, in the field of administrative litigation, function and necessity of case guidance system can be further discussed the following two aspects.
　　

(a) to improve the administrative litigation
On China's "administrative procedure law" is not perfect, not detailed criticism of many, such as stipulated in the fourth paragraph of "administrative procedure law" twenty-fifth "the lawful organization," meaning; the scope of accepting cases of administrative litigation and the problem in "Tian Yong vs. University of Science and Technology Beijing" (5) in the case of reflected on the higher education institutions can be the proper defendant problems. Here, the judge in the case guidance "discovery" process through two main direction of work.
One is through "law making" (6) to solve the case cannot be "administrative procedure law" the relevant provisions into question. According to China's "administrative procedure law" the fifty-fourth regulation, administrative action violates the legal procedure should be cancelled or revoked. Here the "legal procedure" faces two problems, one is the law itself does not provide what is legal procedure; two is that even the provisions cited other law, may not have specific provisions for "legal procedure" in the law. That is to say, the judge in the use of the ruling is likely to be "legislators" instead of "the administrative procedure law" and the relevant law and determine what is "legal procedures". "Liu Yanwen v. Peking University case" as an example, the judge in two aspects for the case involved the "legal procedure" to "law making". On the one hand, Beijing City, Haidian court held that the degree committee does not grant degree of decision involves the applicant's rights, so the degree committee in making does not grant decision shall listen to the opinions and the applicant, shall be the decision service or announced to the applicant, and the Peking University Degree Committee in violation of this procedure, so don't grant decision shall be revoked. In fact, listen to the views and the service announced the program does not exist in the relevant provisions of degrees, the Haidian court is based on the principle of due process of law, and on the basis of the principle to make not conferred and decided to create a rule. On the other hand, the Haidian court also think, Peking University degree committee without half through (a vote no majority) that is made shall not be awarded the degree of decision ", in violation of paragraph second tenth degree regulations". Although the decision was made under the "Regulations" provisions of the degree, but the two logical consequence of this decision is: attend degree evaluation committee must be odd, but may not abstain from voting. (7) the relevant laws and regulations is not specified, the equivalent of a kind of indirect "law making". 8.
The second is the concept of law and the rule is not clearly explained, which will be available in "administrative procedure law" of the relevant provisions. In Meiling village Hengxi town Yinzhou District village committee Chen Pengfei v. Ningbo city does not perform the statutory duties of housing sites reported case, the village committee is "administrative procedure law" second article said "administration" has become the focus of. The court in its judgment "commentary" section that China's village committee is the villagers self-management, self-education, self-service grass-roots mass self-government organizations. (9) "the village committee and villagers is the relationship between the management and the management, is a public function. It is in the economic and social management to achieve its public functions for the direct purpose of the act is a kind of administrative behavior, so the villagers committee is the management behavior, especially authorized by laws and regulations of the act, which is suitable as the defendant of administrative litigation subject qualification". (10) from the text on logic, the court is by nature for the village committee organization act of explanation to the defendants were Meiling village committee in the "administrative procedure law" the second in the "administration", so that the village has become "qualification" the defendant. Although the court did not in the text clearly said "administrative" behavior should be "authorized" and fulfill "management functions", but the court in this process is the actual "administration" and its behavior to do that, otherwise, it is difficult for us to understand why the later the court will village of doing this explanation could be that the village committee in this case is the "administration", as the defendant of administrative litigation is proper.
　　

(two) to regulate administrative power, especially the right of discretion
A very special case guidance system in administrative litigation is that it involves guiding cases determined by the rules and executive powers, especially the relationship of discretion. In modern administrative law, the rules often provide a framework, a measure of the benchmark, but whether this deviation from the reference to what extent is the scope of administrative organs. In turn, the expectation of the public for the implementation of administrative organs and public self management is also the rule exists for the premise of. Therefore, to some extent, we can say that the rule more, more detailed, complete legal actions will be less and less, "illegal" action might increase. "The rule of law requires not eliminate discretion extensively, but the law shall exercise can control it". 11.
Specification of case guidance system for administrative discretion depends largely on the court to determine the standards for administrative discretion specific and behavioral procedures in the administrative litigation process specification. For example, in the administrative punishment of fine behavior, the administrative organ to make it is likely the court that does not meet the criteria of discretion of the administrative organ shall exercise in the matter, so as to the administrative organ in the future similar administrative punishment discretion in how to provide a certain basis, in order to avoid facing the procedure again in the same event. On the other hand, as we lift in front of "Liu Yanwen v. Peking University case, whether the" degree was range of discretion of degree committee, the court does not have enough expertise to intervene, but the court in this case is based on the concept of due process, that the degree committee non degree granting decision violates legal procedure, so as to the discretion to establish a procedural specification.
At the same time, in the process, between the administrative organ and the judicial organ actually produces a similar to the relationship between the exchange of information. Administrative organs in the discretion of related cases, in order to try to make myself to win legitimacy and the exercise of discretion by the consideration of the available to the court, the court again in the face of similar cases have enough knowledge to evaluate; on the other hand, guiding case court decision produced, because it has "shall refer to the effect", the administrative organ may according to the guiding case to make judgment trend, so that the administrative organs to avoid litigation and "have to" identity of guiding cases the proposed standards and procedures. 12.
In addition, also the case guidance system for the control of administrative discretion has another effect, namely because of its clear standard, many areas will gradually from government control to market independent adjustment. Is this a change in the rules and standards, due to the clear, the market for the administrative organ to exercise discretion also had clear expectations, the market main body which can be traded within the discretion standard, so as to avoid because of the administrative organs and the extra cost of dealing. 13.
　　
　　

Three, relevant institutions abroad (14)
　　
In fact, the size of the case is binding and the binding with the system itself. In other words, the system design is actually the source case binding. In this regard, Anglo American law system and continental law system have difference obvious, there will be a brief introduction, which will be helpful to the design of case guidance system in China in the future.
　　

(a) the countries of Anglo American law system
The countries of Anglo American law system adopt the precedent system in our country and the case guidance system is the biggest difference is, the case has precedent effect, is the legal basis and an important source of judgment, binding to the court. The main technology of Anglo American case law system is the "precedent" and "case screening technology".
"Stare decisis" is a basic principle of Anglo American law system, its basic meaning is: the lower courts in adjudicating cases, legally according to superior court and the administrative precedent obligations, so that the superior court in administrative precedent can be at the same level or lower courts follow the good, legal principles and rules established by the administrative the case is so it can be used as a lower court judge basis and standards. Visible, "stare decisis" principle in common law legal precedent system of administration in the higher courts, administrative precedent can be followed at the same level and the lower courts, administrative precedent system are therefore able to run. 15.
The difference between "technology" is "applicable method to follow the precedent principle", and "stare decisis" jointly set up the operation mechanism of the Anglo American law system of administrative precedent system. The difference between "technology" is mainly refers to distinguish, "the aim is to find should follow the precedent, while avoiding the follow an unsatisfactory precedent." (16) the difference between the purpose lies in two aspects, on the one hand the need to identify the facts of the case as a precedent and the facts of the case are similar in extent, so as to determine if it should in this case to the case as the basis. On the other hand, the distinguishing technique need to distinguish, this case will follow the precedent in the extent to which is to follow the precedent, part or completely follow. About this question, the answer is: need to distinguish between the decision of "reason" or "dictum". (17) the so-called "reason" is refers to the court according to law, including the law and follow the precedent, it is the legal conditions for the formation of precedent; and "dictum" refers to the opinion of judge's personal court decision, namely the judge reason, because the rules require logical reasoning until the persuasive, provides the basis for forming the part so actually as a precedent, but also for the subsequent case judge distinction provides the basis for the.
In common law countries, the court case is an important source of law, administrative authorities will also be court constraint, constraint case this constraint is different from the court, but as a legal universal binding. This and our country to respect the law, that the court has no legal effect is a big change, and in China, the administrative organ to what extent by guiding case constraint has become a problem that is worth to discuss, which will be discussed in this article.
　　

(two) the countries of continental law system -- the administrative precedent system in France
Traditionally used in civil law countries, respect the law principle of exclusion of cases, but also acknowledges that the role of the informal source of law case. In Professor Zhang Qi's "a comparative study of the case law -- on the significance of Chinese established case law, institution and operation" in one article, Professor Zhang Qi from the actual needs, legal uncertainty, incompleteness and the civil law countries practice three aspects for the civil law countries why the existence of case law are described (18) in fact, for discussion of this issue, in the discussion of whether our country should establish a similar system is also persuasive.

This paper is concerned with the field of administrative litigation, the first thought of concern in the countries of continental law system of administrative precedent system of france. Has a certain historical conditions of the formation of the French administrative precedent system. On the one hand, the French Constitutional Convention in 1790 a law specifically prohibits the general principle in the judgment, but in 1804, "French Civil Code" fourth stipulates that: "judges excuse no law or law is not clear not complete and rejected, according to judge crime v. the." (19) the change of this legislation since that law is not complete, then the court applied the law needs to interpret law even proposed some general rules, which plays an important role in the later court, for the French case system in law left hints.
On the other hand, the conditions for the formation of the administrative court system independent of the. Because of strict separation of the three powers, the administrative court case was considered the violation of the right to judicial administrative power. And before the French Revolution, administrative litigation mainly consists of ordinary jurisdiction of the court, and the ordinary courts is dominated by the feudal aristocracy, residual representative of the feudal aristocracy. After the revolution, France in order to get rid of the old regime, deprived of ordinary court administrative cases by using three power separation theory of power. However, in order to make administrative power constraints, administrative dispute resolved, France created a King House counselor, later changed to the National Advisory Institute, administrative litigation. 20.
Because of the common court and the administrative court of existing provisions, the French administrative court and civil law and other civil law does not apply to the settlement of administrative disputes. But the administrative court in administrative affairs is too complex, the French national relevant specification can not meet the need of administrative trial, often lawless situation, therefore, the administrative court in France has formed a series of important principle in the judicial practice, the case has the extremely important legal effect the precedent, played a major role in the French administrative court trial. 21.
　　
　　

Four, the guide case for the validity of administrative organs
　　
As already mentioned, the case guidance system in the administrative litigation law is to regulate administrative discretion function. But these discussions are based will comply with or at least will "have to" impact of guiding case assumption on the basis of the administrative organ, so it needs to be discussed is below the case guidance system in China, the guide case for the validity of administrative organs of the why, as well as some of the problems associated with this.
　　

(a) the judicial finality principle can become the basis for
The so-called judicial final principle is refers to the court that has the jurisdiction of all nature of justice have final jurisdiction. (22) on the basis of this, some scholars also sums up four effective judicial judgment: force, to determine the force, binding force and execution force. (23) the specific content for the judicial final principle understanding is not very detailed, not for this summary comment. According to the binding force of the induction of content, should be all the cases are binding on the administrative organ; however, from the above we for the case guiding system in China and foreign legal precedent system description of view, China's court case to a binding legal precedent system, foreign cases that at the same time at this, and the provisions of the case guidance system in china. According to the case guidance system in China, only to be identified as the guiding case case has the "Regulations" in the word "shall refer to the effect of". Therefore, in my opinion, judicial final principle and case binding force should be two different issues, the judicial finality principle should be reflected in the judgment process, judicial finality, and the administrative organs shall not violate the judicial decision and the decision points of administrative behavior. But if related to the case for administrative behavior in the future, should belong to the foreign legal precedent and the case guiding system in China area, therefore, the relationship between the two is the relationship between the different systems should be rather than theoretical basis.
　　

(two) from the point of view of the "Regulations" of the text
"Regulations" for the effect of guiding cases is "shall refer to the", here can be understood from three aspects. First of all, in administrative proceedings, the "reference" one word more is in the regulations of the legal effect. "Administrative procedure law" fifty-third stipulates: "the people's courts shall, according to the State Department, the people's Government Committee according to the laws and administrative regulations of the State Council, decisions, orders and regulations formulated and announced, the people's Government of a province, autonomous region, municipality directly under the central government and the provincial, autonomous region is located, and approved by the State Council a large city development, according to the laws and administrative regulations of the State Council issued the regulations." For the "reference", Professor Jiang Mingan made the following interpretation of the "on administrative law and administrative procedure law" in one book: the people's court in the trial of administrative cases through the review, that rules not legitimate, but refused to apply, but not announced regulations invalid and revoked; people's court review, identify the corresponding legal rules and regulations, the regulations have the force of law, the court in the trial of administrative cases should be applied. (24) the problem here is that, whether we can for the "Regulations" in the "reference" do the same interpretation? The author thinks, is not doing the same interpretation, but can make the explanation of analogy. Because, in reference to the court does not have the relevant evidence materials and did not understand the case facts of the case, the court could not review the guiding case, but may also have no right to review. However, the people's court shall have the option to do is choose not to reference power. The people's court needs to identify cases in the trial process, similar to the foreign case law system under the screening system, to decide whether the case is similar with the case guidance system, which based on confirmed case guidance rule for judgment. Further, for the executive authorities, if the basis or reference guide case in judicial discretion, should also have the right to choose, otherwise, once faced litigation, administrative organs still will because the choice of reference conditions do not correctly face even act is revoked.
Secondly, the nature of the Supreme People's court research director Hu Yunteng in accepting the "Legal Daily" interview has been guiding case made the following explanation: "guiding case the people's court, in view of its nature is a form of legal interpretation, more precisely, is the solution to a form of" constitutional interpretation law of the laws of the country, "guiding case is clear, specific and make up the law principle, fuzzy and oversight role, but not made law interpretation function". (25) the guiding case as an explanation, the authors speculate, its purpose is to respond to judge made law violation of civil law to respect the laws concerned. But here the question arises, in the interpretation of the law, the Supreme People's court to make judicial interpretation in the specific trial issue, no matter how effective this interpretation of the law, practice has already and substantive law has the "same" effect; then the same as issued by the Supreme People's court, is the same a kind of legal interpretation, has the effect that this in fact or guiding case? "" because the provisions issued a short time, practice for the compliance of guiding case is whether such as judicial interpretation that can not make a judgment. But one might guess, if will guide the case as a legal interpretation of the words, it is possible to have this effect, you can further speculation that, to confirm the guiding case rules are "binding force" for the administrative organs. 26.
Finally, there is a need to explain, both "shall refer to the" or "a judicial interpretation of the way", effect of guiding cases and its interpretation of the provisions are not on the validity of the administrative organ that how to. In fact the effect we say or binding force is actually through the courts as intermediate media speculation. As mentioned above, notes that, the court will observe and further empirical study also need to comply with such an explanation to what extent.
　　

(three) the rational basis of guiding cases and administrative discretion
The rational basis of source of guiding cases can be used as a rational basis for judicial rules: no favouritism and legal professional. The rational basis of administrative discretion in the administrative organ is the special organ special treatment in the fields of administrative affairs, has considerable expertise and experience, and, after hearing procedure introduced in our country, the discretion of the administrative organ at the same time also has a public rational (27) and democratic color. Here comes the problem.
First of all, from the administrative organ and the judicial organ of the professional division of labor perspective, the judicial organ does not have the administrative organ handles related business knowledge and experience, if the administrative organ is of guiding case "restraint", will "not professional"? This kind of worry is long-term and widespread. But from some aspects, the author thinks that can reduce the "non professional" problems. First, the modern administrative procedure for more restraint and discretionary administrative aspects of the program is carried out from the aspects of constraints, as we have listed in the previous Liu Yanwen v. Peking University case, the court as a judicial institution does not have the ability to judge the level, it can not understand the degree committee awarded the degree certificate not why is correct; and correct judgment and no more belong to the problem of rationality, under the framework of China's administrative procedure law, the court has no power to review. However, the court can do is, once found that administrative organs exercise their powers in violation of the statutory procedures, the court will be according to the "administrative procedure law" in article fifty-fourth to withdraw or partially withdraw, rather than to replace administrative decisions. Second, under the framework of the legitimacy of administrative litigation, because once the administrative act has been challenged, the administrative organ must try to defend themselves, put all to prove his legal evidence. In this process, the administrative organ may, on their own material evidence collected, and make the administrative act on the basis of knowledge and experience to explain to the court. Therefore, this fear is not what we say so strong. An additional effect at the same time, this process can also be generated, due to the administrative organ in a lawsuit to try to prove their legitimacy, will all the evidence presented, and some might be considered illegal evidence and the idea of "hidden". These once after guiding case "immobilized", we can for under similar discretion what is understand the administrative organ shall consider, to create "a be considered irrelevant facts" rules effect. The third game, the administrative organ and the judicial organ is long, but is not the case, in general, with the increase of the court case guidance form, between the court and the administrative level of knowledge and experience gap will gradually narrowing, and guiding case by the nationwide by the Supreme Court announced, this effect will be nationwide.
Secondly, the process of the exercise of administrative power, the administrative organ may hold a hearing procedures in some situations, this is considered to be a public rational and democratic color. Especially under the concept of democracy, democratic deficit (28) this popular is particularly important. The problem here is that, first, the judicial organs after the judgment and confirmed by the Supreme Court case guidance issued whether such an effect? If not, the administrative organ shall also be restricted by what guiding case? The public rational effect in the above have been mentioned, namely, the administrative organ to prove to the court legal the behavior of the administrative organ that will collect the information to the court for the public. Need is the administrative organ of public information and further guarantee is complete, this can be ensured through the evidence system. For example, the evidence system of presumption, the relative person there is enough evidence to prove that the administrative organs have the evidence in its favor but not when the evidence for the existence of presumption rules. And for the democratization process effect, judicial decision is not democratic, and may result in some collegial decision denied the Democratic decision. This seems to be a logical conclusion, but the problem is, this conclusion ignores the administrative proceedings examination content. This problem can be from two aspects of entity and procedure. The procedure of administrative litigation, the review of the administrative action is consistent with the statutory procedure, further, in the democratization of the level, is to ensure that the administrative organ decides to relatively full hearing rights (29), if the acts of the executive authorities did not reach the required by law procedure, we can think, the administrative behavior did not reach the degree of democracy should be, do not conform to the provisions of the law to exercise the power requirements. But in the entity, but at present our country court to do under the illegal breach of privilege level and unreasonable state are reviewed, and in these illegal reason, although on the surface the administrative organ may behave with democratic procedures, but violated democratic substantive significance or violated more high level of legal status, the review is to ensure administrative democracy, not conflict with.
　　

(four) local recommendation case as guiding cases and universality
From the view of "different rational decision based on indirect regulation" interpretation of the text generated by a "binding" and judicial decisions and administrative organs, administrative organs have to accept or "have to" accept the guidance case "restraint" reason. But, when receiving the constraint basis, there are some problems need further consideration.
Source case guidance in China as part of the district court to the Supreme People's court is recommended to. These cases may be very local characteristics, and the local characteristics may be a novel case hidden said in the "Regulations" or is widely concerned case. Or, in some cases even though it has a universal significance, but the specific standard in these cases is likely to be affected in different conditions. So the question is, the case guiding the direction of the Supreme People's court recommended to determine whether and how to apply to other places? The Supreme People's court for such a case should be how to treat? For this problem, the current "Regulations" can not solve, and we currently do not have an empirical Study on similar cases that attitude, which is similar to the case of the Supreme People's court. The author believes that, in the development process, the guiding case set "rules" for the release of the right can be extended by the Supreme People's court to the Supreme People's court, in response to what we propose here, after all, in the "Regulations" promulgated before already had the higher people's court of many places to try in doing this. 30.
　　
　　

Five, the conclusion
　　
Released in 2010, the Supreme People's court "about the case guidance work rules" although still relatively simple, some specific regulations, standards and regulations need to be perfected in future practice, refinement, but the issue is a very important legal time. Regarding the administrative litigation, due to the administrative organ, causes problems and civil litigation, criminal litigation is different in the case guidance system. We are here only for its special function as well as the guiding case for administrative organs of the binding was discussed, the intention to provide some ideas for future research, and make some efforts to perfect and develop the system.
　　
　　

Notes.
(1) the description of the main basis is about the case to guide the work of the provisions of the Supreme People's court "". The Supreme People's court research director Hu Yunteng in accepting the "Legal Daily" interview was the "Regulations" sums up six aspects, see the detailed "the Supreme People's court research director Hu Yunteng -- the people's court case guidance system" (J), "legal information" in 2011 first.
The case guiding system [2] since the founding of new China, can be considered the origin began in 1985 Bulletin of the Supreme People's Court published instructive case approach. In 1992, the Supreme People's court decided to set up the Institute of applied jurisprudence Chinese, the main task is to edit the "people's court case", for the reference of the national court case. Soon, the Supreme People's court and later the National Judges College started to cooperate with the Law School of Renmin University of China Chinese case judgment summary "edit". Then, in 1999 promulgated the "the people's Court of first five year reform outline (19992003)" in the "2000, discussion, decided the typical cases of applicable law promulgated by the judicial committee of the Supreme People's court, for the reference of the lower court trial of similar cases." And formally proposed the name "case guidance system" was published in 2005 "the people's court second five year reform outline (20042008)", the outline thirteenth stipulates: "the establishment and improvement of case guidance system, pay attention to guiding cases to unify law application standard, guide the lower court trial work, enrich and develop the law other aspects of the theory of action. The Supreme People's court enact normative documents of case guidance system, the provisions of directive cases compile standard, compiling procedure, distribution, guide rules." And in 2010 promulgated the "Regulations" can be seen as the formal establishment of the mark. In December 20, 2011, the Supreme People's Court issued the first batch of guiding cases (method 2011) (No. 354). These cases are the Shanghai Zhongyuan Property Consultants Ltd. v. Tao Dehua contract disputes case, Wu Meisu Sichuan Province Meishan Xicheng paper company sale contract dispute, Pan Yumei, Chen Ning bribery case, Wang Zhicai homicide, a total of 4 guiding cases. Note that the 4 case of this, 2 civil cases, 2 criminal cases, there is no administrative cases.
(3) but it is certain, the case guidance in China does not have the legal effect, director Hu Yunteng in accepting the "Legal Daily" interview, regarding the nature of guiding case is introduced, he thought the guiding case is a kind of legal interpretation, not a law making form. At the same time, the scholars of our country in different articles are based on our country's civil law countries, should respect the laws of reason and think, validity of guide case does not have a law, and most can only be described as a kind of effective method.
(4) the "Regulations" "objective" mention "summary trial experience, unified application of law, improving the quality of trials, safeguard judicial justice......" In fact, the scholars in the discussion is mainly focused on the function of application of law, improving the quality of trials, safeguarding judicial justice.
(5) for details about the case and the analysis can see Ma Huaide: "the system of administrative law construction and case study" (M), China University of Political Science and Law press, 2004 edition, 302nd - 315 pages; Mr. Shen: "changes in public law and legitimacy" (M), law press 2010 edition, the 102126 page.
(6) for the phrase "make law", the general could produce two different paths of criticism, one is in the aspect of value, that the civil law countries to comply with the law tradition against judge made law; the other is in the practical level, which is China and 2010 awarded by the cloth "Regulations" for the effect of guiding cases is "shall refer to", although the "should be" argument, but from the "reference" that view, guiding cases still does not have a formal source of law, not bound by law, as the basis of a decision. For the former, Professor Zhang Qi in the "build China precedent system significance and path:" case law "and a 'question' -- A Perspective of comparative law" in an article from the six aspects of the response; while for the latter, the guide case although no formal legal significance, but the case with the guidance of a lower court decision once made rules are inconsistent, the higher court will have the possibility to undo or commute, here a need further empirical research question is, in the lower court before judgment according to the directive precedents, the superior court is most tend to cancel or change in this study, only we can truly there is evidence to reject second questions. Therefore, we can say, the first sense of the constraint is a kind of legal constraints, and second kinds of constraints is a kind of incentive mechanism constraint.
(7) Shen logic here generally is: if the court requires the majority to pass, so it can meet the requirement of odd number only in time, otherwise will have the same number of cases, this case will be court decisions that do not meet the program and was revoked; second corollaries are also the same reason, i.e. if there is abstained in the situation also may produce the attendance is even, also can not meet the judge made rules, may also will face the danger of being revoked. Of course, this logic may have some problems, but whether it's wrong or right, we have to remind readers attention is actually the decision can be further introduced the conclusion part is the guiding case problems. Specifically for the two logical result see Mr. Shen: "changes in public law and legitimacy" (M), Law Press 2010 edition, page 158th.
(8) above the "direct law making" and "indirect made law" was based on, in fact we can further questions: guiding case "guidance" or "shall refer to the" whether these indirect created rules?
(9) see the "Village Committee Organization Law" article second.
(10) the specific details and judgment can see Meiling village Hengxi town Yinzhou District village committee of Ningbo Chen Pengfei v. do not perform residential land statutory duties case report. The source case shows the National Judges College and Law School of Renmin University of China: "China case judgment summary (2008 administrative trial case volume)" (M), Renmin University of China press, 2009 edition, page article 260263.
(11) Wade: "administrative law" (M), translated by Chu Jian, Chinese encyclopedia press 1997 edition, page fifty-fifth.
(12) in fact, this part of the argument also need to be more specific, the case guidance system in China at present to achieve this function also needs many conditions. For example, for whether the binding force of guiding case is what kind of, need to be further clarified; the identified in guiding case rules, administrative organs will not produce aversion tendency, so that the rules are suspended. This limitation in space will no longer be launched.
(13) a problem here may be that, some enterprises are willing to deal with the administrative organ or administrative proceedings and administrative organs, these enterprises may be more large enterprises, because they will have a chance to make their own standards by discretion administrative organs to certain rules or the court rose as the guiding case in the process, so as to make the market play by their own rules.
(14) we discuss the case guidance system of our country, using the "case", and here we use the word "case". The difference between the two, some scholars discuss. See Wang Shirong: "-- the case and the legal development" (M) research on judicial reform Chinese Law Press, 2006 edition, page twenty-first - 23. These two concepts the author does not distinguish, just follow the general argument, for the convenience of discussion and the use of the word "case".
[15] Wumei: "research" China administrative case guidance system (D), master's thesis of Guangdong University of Business (2010).
(16) Zhang Qi ": a comparative study of the case law -- on the significance of Chinese established case law, institution and operation", "comparative study" in 2002 fourth.
Allen (17). Faenziwosi: "Introduction" America legal system (M), translated by Ma Qingwen, the press 1986 edition, page seventieth. Quoted supra note (16).
(18) with (14) note.
(19) Wang Shirong: "-- the case and the legal development" (M) research on judicial reform Chinese Law Press, 2006 edition, page 100th - 101.
(20) Meng Fanping: "the establishment of administrative case guidance system in China -- A Perspective of French administrative precedent system" (J), "the people's justice" in 2006 second.
(21) this and other French legal field situation is obviously different, Professor Wang Mingyang made a very vivid expression in the "French administrative law" in one book: "if we assume that lawmakers at the stroke of a pen, cancel all the civil law, civil law of France would not exist; if they cancel all provisions of criminal law, France will be no criminal law existence; but if they cancel all administrative law, administrative law in France still exists, because there is no important principle of administrative law statute, but in the case." See Wang Mingyang: "the French administrative law" (M), China University of Political Science and Law press, 2003 edition, page twentieth.
(22) he days: "the judicial finality: China's judicial system defects and perfection" (J), "law" in 2002 second.
(23) with (22) note. Among them, the author of this paper for binding the judicial referee expressed as: "the final judgment is made, the parties, the court and other state organs are constrained by the." "For the administrative organs, due to the restriction of the binding force, can not allow him to have administrative acts contrary to final judicial judgment."
(24) Jiang Mingan: "administrative law and administrative procedure law" (M), Peking University press, higher education press in 2007 third edition, 575th pages.
(25) see the detailed "the Supreme People's court research director Hu Yunteng -- the people's court case guidance system" (J), "legal information" in 2011 first.
(26) here "binding force" is the use of quotation marks because the judicial interpretation on administrative organs have binding force as well as a case guidance mode of legal interpretation has binding force is not determined by the corresponding. "Because according to the Standing Committee of the National People's Congress resolution on enhancing the legal interpretation work", the judicial interpretation is carried out in the legal process to explain, "legislative law" itself has not identified it as one of our country's law. But in practice, if the administrative organ is not in accordance with the provisions of the judicial interpretation of the exercise of power, administrative behavior will risk being revoked. In this sense, the administrative organ in accordance with the "should be" judicial interpretation of the exercise of power.
(27) the public rationality and expert rationality and rational government relative. Specific distinction basis as well as the effect can see Wang Xixin: "public decision-making in the public, experts and government -- to Chinese price hearing system as a case study perspective" (J), "foreign law" in 2006 fourth.
(28) the so-called democratic deficit, refers to the political governance and public administration are huge, namely top managers and the construction of the superstructure is not support for democracy. Therefore, in government management process, need to introduce some between democratic factors to political governance and public opinion difference narrowed, thereby strengthening the management behavior of acceptability.
(29) note here is, hearing procedure in administrative behavior plays a different role is different, do not all have rational and democratic. For example, hearing procedure in administrative process, its role is more of a given function arguments and take the opportunity to comment the relative person. But in the price hearing, such as in the administrative legislation hearing is what we call a public rational and democratic function.
(29 such as Liu Mingdong of Southwest University of Political Science and Law master's thesis (2010) "the construction of administrative case directing system -- Taking 'the Chongqing Higher People's court administrative trial case guidance method' is on the basis of the" Chongqing Municipal Higher People's court administrative trial the case guidance system is to do an empirical study.
　　
　　

Zhan, doctor of law, Professor, tutor of doctoral students of Peking University School of law.
　　

Source: "Journal of National Prosecutors College in 2012 first.