Rediscussion of the Nature of Validity and Guarantee Concerning the Effects of Guiding Cases

Abstract

To some extent, “The Provisions of the Supreme People's Court on Issuing Guiding Cases” has solved the embarrassment of guiding cases in China, which is caused by the lack of both community consensus and institutional authority. Judicial precedents in civil law countries also encounter the problems of persuasion and sanction, but are resolved by a combination of the precedents' rationality and the power of the judiciary as an institution. Similarly, the effectiveness of guiding cases in China also stems from the same two factors, but guiding cases have three differences from the judicial precedents of civil law countries. These differences are closely related to the three contradictions arising from the establishment and development of guiding cases in China. Nonetheless, China's guiding cases are required by the trend of the times and in order to fully constitute the Chinese legal system. Guiding cases will succeed to the extent that they help realize social communication and consensus. In particular, China should rely on guiding cases to adhere to the rule of law, maintain unity and harmony of the legal system in promoting social harmony, and provide justification and public citation when establishing and using guiding cases.