关于中国建立判例指导制度的思考

On the Establishment of Precedent Direction Regulation in China

判例在普通法法系国家中是一种重要的法律渊源,是法律的表现形式;民法法系国家一般不承认判例的约束力,但在法律实践中判例法实际存在。受两大法系相互融合,取长补短的影响,我国案例指导出现了判例化的倾向。鉴于我国制定法的局限性,建立判例指导制度已经非常必要,它可以带来多方面的好处,但也要注意一些问题。

As an important source of law, precedent is the expression form of law in the common law countries. In Civil Law countries, precedent is not generally considered having binding force, though it still takes effects in practice. Influenced by both of the two major legal families, judges directions in China tend to make judgments by the from - precedent - to - precedent research. This paper states it is necessary to establish precedents direction regulation due to the present limitation in judgment in China today, however, several points are suggested to tackle carefully despite its benefits.