中国における案例指導制度

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  • チュウゴク ニ オケル アンレイ シドウ セイド

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type:Article

In 2010 each of the Supreme People's Court and the Supreme People's Procuratorate issued “Provisions on Work Related to Guiding Cases”, which marks the official establishment of the system of “guiding cases” in China. This system is regarded as the case law system with Chinese characteristics. This article discusses various problems concerning this newly established system of guiding cases in China, expecting that the system will play a proper role in judicial practices and thereby constitutes an important part of Chinese legal rules. In this discussion the author also makes a preliminary analysis on the form and contents of the first guiding cases that the Supreme People's Court released. The Court presents each guiding case in the following five respects: the key points of the judgment passed on each case; relevant laws and regulations; basic facts; the consequences of the judgment; and the reasons for the judgment. Among them the first and the last ones are the most important, because the key points of the judgment will become the rules created newly by guiding cases, and the reasons for the judgment the legal foundation of those rules. The first guiding cases released by the Supreme People's Court and the Supreme People's Procuratorate consist of three types: (1) the type which creates rules; (2) the type which merely announces political policies; and (3) the type which directs the daily works of courts and procuratorates. This release however marks only the beginning of the guiding case system in China. How this system makes an impact on the development of the rule of law in China is still to be assessed in the future.

identifier:http://repository.seikei.ac.jp/dspace/handle/10928/305

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