论指导性案例的效力及其体系化

Effectiveness and Systematization of Chinese Guiding Cases

我国案例指导制度发展完善的重要途径之一,是不断强化具有指导作用的案例的效力。我国指导性案例的效力由规范性文件明确赋予,具有更强的拘束力,在形式上具有普遍性、同质性、单层次性等特点。与此同时,我国指导性案例效力的有关规定存在影响指导性案例的生产和供给,阻碍指导性案例品质的提升并弱化指导性案例的实质效力,弱化其他具有指导意义的案例的价值等弊端,以致指导性案例已然"适用难"。为兴利除弊,需要对指导性案例的效力进行体系化、层次化的建构,即一方面融合、吸收习惯法,建立效力层次区别明确、体系化的指导性案例,另一方面理顺指导性案例与最高人民法院发布的其他具有指导意义的案例之间的关系。

The continuously enhanced effectiveness of guiding cases is an important approach to developing and perfecting the guiding case system in China. The effectiveness of guiding cases is clearly defined by the relevant normative documents so that they are more legally binding and have characteristics of universality, homogeneity and mono-layer in form. However, problems still exist: for example, some relevant provisions affect the production and supply of guiding cases, impede the improvement of the quality of the cases, and weaken the substantive effect and value of the cases. All this makes it difficult for the guiding cases to play their expected function. To address the weaknesses and make the best use of the guiding cases, we have to systemize and build a hierarchical structure of the guiding cases according to their guiding effect. That is, we have to incorporate and absorb customary law, establishing a well-structured system of guiding cases with different levels of effectiveness on the one hand; on the other, we have to develop due understanding of the relationship between the guiding cases and other cases issued by the Supreme People's Court which also have guiding effect.