The Dilemmas and Breakthroughs of Applying Similar Cases in Adjudication
The problem of"like cases are not treated alike"in judicial practice is becoming increasingly severe,seriously damaging judicial fairness and authority.The establishment of case system with Chinese characteristics aims to solve this problem.The applying of similar cases has achieved certain results in the unification of the application of the law,but it still faces many problems that need to be cleared from conceptual,institutional and methodological perspectives.To this end,it is necessary to clarify the effectiveness direction of different types of cases.The specificity of the effectiveness of guiding cases stems from the joint guarantee of strong formal authority and rational authority,while the normative force of other cases is more shaped by their inherent substantive rationality.In the process of applying similar cases,it is necessary to implement a comparative thinking of analogy,especially to learn to accurately judge the similarity between cases.Only by confirming the substantive similarity between the previous case and the subsequent case can the basic premise of applying similar cases be obtained.When referring to similar cases,they should be regarded as an organic whole,and the rule of decision should be linked to the facts of the case,the reasons for the decision,and the application of law,so as to limit the judge's arbitrariness.In addition,attention should also be paid to the limitations of the principle of"like cases should be treated alike",and it is necessary to correctly treat the diversity and differences of judicial decisions,and avoid rigidly pushing this judicial ideal to the extreme.
Guiding CasesLike Cases Should Be Treated AlikeAnalogical ThinkingRule of DecisionPrecedent System
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