Application Status and Effect Improvement of Procuratorial Guiding Cases
Since the Supreme People's Procuratorate issued the Provisions of the Supreme People's Procuratorate on Case Guidance in 2010,many procuratorial guiding cases have been released.However,their application status has been unsatisfactory.In this context,it is of great practical and theoretical significance to explore the reasons behind the poor application status of these cases through empirical studies and theoretical interpretation and,on this basis,to put forward suggestions for improvement and enhancement.In the revision of the Provisions of the Supreme People's Procuratorate on Case Guidance by the Supreme People's Procuratorate in 2019,the binding force of procuratorial guiding cases was changed from"may refer to"to"shall refer to".Thus,it is both important and necessary to reflect on the logic behind the change in binding force.In terms of the nature of norms,procuratorial guiding cases serve not only as adjudicative norms but also as behavioral norms.In terms of the strength of binding force,procuratorial guiding cases are a defeasible source of"law as it ought to be".In terms of value functions,procuratorial guiding cases have a series of important functions,such as extending the denotations of the types of sources of law,limiting prosecutorial discretion,and promoting public recognition of procuratorial functions.Therefore,we should stress the application of procuratorial guiding cases in judicial practice and fully recognize their role.However,through empirical analysis of the themes,subjects,content,and results of procuratorial guiding cases cited in judicial practice,we find that they face specific practical application dilemmas,such as low case coverage rate,low explicit citation rate,low normative citation rate,and low citation application rate.These dilemmas are mainly caused by the following three reasons:(1)Internal reason:The types,quantity,and quality of procuratorial guiding cases need to be improved.(2)Institutional reason:Related supporting institutions are insufficient to support the functions of procuratorial guiding cases.(3)Methodological reason:The methods for citing procuratorial guiding cases are immature.As can be concluded from the above analysis,in addition to abandoning the wrong cognition of procuratorial guiding cases and developing a sound systematic case-based reasoning methodology,we should focus on institutional perfection and methodological improvement in five aspects:(1)Quantity guarantee:create a"three-in-one"group of procuratorial cases,consisting of ordinary cases,typical cases,and guiding cases.(2)Quality guarantee:improve the generation and elimination mechanisms of procuratorial guiding cases to strictly add new cases and take out outdated ones.(3)Institutional guarantee:improve the institutions providing support to procuratorial guiding cases;establish a mechanism of"interpreting laws with cases"for the analysis and reasoning of adjudicative instruments;and advocate a system of"openness to the largest degree"for procuratorial work.(4)Methodological improvement:emphasize the application of typological thinking,in addition to the method of similarity judgment,when establishing and citing procuratorial guiding cases.(5)Digital procuratorate:although AI is incapable of completely replacing humans in fulfilling judicial duties,digital technology can nevertheless play an important role in assisting legal professionals,including prosecutors,judges,and lawyers.In this sense,we also need to strengthen the use of digital technology in facilitating the application of procuratorial guiding cases in judicial practice.
procuratorial guiding casenature of binding forcefunctional orientationpractical predicamentdigital procuratorate
万方数据
