“指导性案例”名称之辨正

Rectification of the Term "Guiding Case"

关于判决先例,最常用的名称有三个:判例法、判例和指导性案例。近年来,"指导性案例"一词已成为我国法律界的最常用术语。在研究指导性案例的名称时,需要对指导性案例以及判例、判例法的实际用法与语境进行实然性考察。

There are three terms in common use to express the notion of judicial precedents： case law, precedent and guiding case. In recent years, the Supreme People＇s Court has defined the task of building and improving the system of guiding case. Against such a background, the term of ＂guiding case＂ has become the most commonly used term in law circle in China.Therefore, it is necessary to conduct a practical study on the usage and context of the terms of ＂guiding case precedent＂ and ＂case law＂. Compared with ＂precedent＂, the term ＂guiding case＂ has the following problems： redundant in the form of expression, deviated in the definition of functions, and difficult in scholarly communication. In the rectification of the term ＂guiding case＂, the follow principles should be adhered to： distinguishing the differences and similarities, reflecting the true nature of the terms, following the common practice, and being reasonable and acceptable. At the same time, feasible and concrete measures should be taken to ensure the success of the rectification.