案件请示制度之废除及其功能替代——以中级法院的运作为出发点

The Abolition of the System of Instruction upon Request and Its Functional Alternative ——On the research of the operation of Intermediate People's Court

案件请示制度作为我国法院审判工作的惯例,由于违背司法的本质和规律,受到理论和实务界的众多批判。立足于中院近年来请示案件的运作,通过实证分析,认为这一制度在因过多的消极功能违背司法规律应予废除的同时,应当建立相应的制度替代其承载的积极功能——主要是法律统一适用的功能,而通过审级制度改革和建立中国式判例制度不失为理性的选择。

As a convention in China＇s court trial work, the system of instruction upon request is criticized by theory and practice sectors because it violates the essence and rules of justice. This essay is based on the operation of case instruction upon request occurred in the Intermediate Court the author serves in recent years. Through empirical analysis, the author believes that this system shall be abolished due to too much negative functions which violate judicial rules, and we shall establish the corresponding alternative for the system to bear its positive functions mainly the function of unified application of laws. To conduct reform of trial level system and establish China Case system would be a rational choice.