为判例制度正名——关于构建我国判例制度的思考

Justification for the Judicial Precedent System: Reflections on the Construction of Precedent System

我国当前并无明确的判例制度,但实际上存在着"近似判例制度",如案件请示批复制度是有实无名的判例制度,案例选编公告制度是心照不宣的判例制度,案例指导制度是欲言又止的判例制度,这些制度有诸多不足。随着社会的发展和司法实践的需要,我国应当建立判例制度。建立判例制度有利于维护法律的稳定性,树立法律的权威;有利于矫正我国的近似判例制度,树立司法的权威;有利于提高我国个案审判和判决书的质量,树立法官的威望。我国构建判例制度的基本思路应当是,使判例制度与法律方法相结合,使判例制度与司法解释制度相结合。我国应当构建一个由最高人民法院和审案的人民法院共同制作判例、由最高人民法院发布判例的判例制度,这是构建我国判例制度的关键。

At present, there is no definite judicial precedent system in China. However, in fact, the ＂approximate precedent system＂ exists, such as, the application and instruction system that exists in practice without exact name, selected case announcement system that is the understood one, and case guidance system that freezes its words on its lips. Therefore, all these systems are far from perfect. With the development of society and the need of judicial practice, judicial precedent system should be made in China, which will make a difference in the construction process of law. Moreover, it is helpful for the maintaining of the stability of law, establishing the authority of law and judicature, improving the quality of the judicial decision and verdict, as well as establishing the prestige of the judge. The construction of judicial precedent system should be based on the combination of it and legal method as well as the integration of it with judicial interpretation system. In China, such system should be constructed, which is jointly made by the supreme people＇s court and trial court entering in the records, and announced by the supreme people＇s court, which is the key to the construction of judicial precedent system in China.