Rational reconstruction and judgment in similar cases of criminal guidance cases
As a formal judicial requirement,"treating like cases alike"cannot fully explain the basis of legitimacy of invoking guiding cases in pending cases.It needs to be substantially supplemented by general rules.Analogism in the field of law requires that general rules have both legal and normative qualities.The tatbestand,as the product of the typed thinking in the specific department law,can be the general rules in the field of criminal judgement.These rules are constantly concretized in the process of interpreting the elements of the tatbestand,and have led to a typological thinking trend in criminal law theory and criminal justice.The judgment standard of similar cases in the strict sense emphasizes too much on the specific conformity of the whole facts while limits the scope of application of criminal guidance cases,failing to meet the practical needs of criminal justice.Guided by the elements of the tatbestand in criminal law,we can establish a concept of similar cases in a broad sense,and activate the institutional activity of criminal guiding cases by dynamic judgment method of similar cases.
treating like cases alikegeneral rulesanalogismcriminal guiding caseselements of the tatbestand
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