论最高人民法院指导性案例的法律适用

发布时间：2018-09-17 07:42

【摘要】：长期以来,从司法实践中来看,我国需要一部指导性案例规章来解决法律语言的模糊性和法律漏洞的不可避免存在、“同案不同判”现象导致司法不公、社会呼唤司法统一的一系列现实的问题,而基于此法理基础和现实背景,同时也是为了克服成文法的发展上的不足,统一法律适用规则,提升司法效率并对法官的自由裁量权进行必要限制,最高人民法院出台了《关于案例指导工作的规定》(以下简称《规定》)及其实施细则,这也标志着我国指导性案例制度已经由应然走向实然。但是我国现阶段的指导性案例还存在很多不成熟,表现为效力定位尚不明确,尽管《规定》及其实施细则规定了指导性案例具有“参照”的效力,但是由于“参照”的涵义尚不明确,学界和司法实践并未形成统一认识;各地操作标准不一,各级法院和法官在适用方面具有很大的任意性;加之我国成文法的传统,法官普遍缺乏指导性案例的适用技术和思维,这些不足使得指导性案例的作用并没有真正发挥出来。理清指导性案例与法官自由裁量权的关系,充分发挥指导性案例在统一法律适用方面的作用并赋予其应有的法律效力,制定指导性案例统一适用的硬性规范,打破适用法律规范的僵化思维,才能让指导性案例真正发挥其在司法实践中的作用,从而将指导性案例制度导向更加完善、科学、合理、美好的未来。
[Abstract]:For a long time, from the judicial practice, our country needs a guiding case rule to solve the ambiguity of legal language and the inevitable existence of legal loopholes. The phenomenon of "different judgments in the same case" leads to the unfair administration of justice. The society calls for a series of practical problems of judicial unification, and based on this legal basis and realistic background, and also in order to overcome the shortcomings of the development of statutory law, to unify the applicable rules of law. To enhance judicial efficiency and to restrict judges' discretion, the Supreme people's Court issued the provisions on case guidance (hereinafter referred to as "regulations") and its implementation rules. This also marks that the guiding case system in our country has changed from what should have been to reality. However, there are still a lot of immature guiding cases in our country at the present stage, which shows that the orientation of effectiveness is still unclear, although the provisions and its implementing rules stipulate that the guiding cases have the effect of "reference". However, because the meaning of "reference" is not clear, academic circles and judicial practice have not formed a unified understanding; the standards of operation are different, courts and judges at all levels have great arbitrariness in their application; in addition, there is a tradition of statutory law in our country. Judges generally lack the applicable technology and thinking of instructive cases, which make the function of instructive cases not play a real role. To clarify the relationship between the guiding cases and the judge's discretion, to give full play to the role of the guiding cases in the application of unified laws and to endow them with due legal effects, and to formulate the hard norms for the unified application of the guiding cases. Only by breaking the rigid thinking of applicable legal norms can the guiding case really play its role in the judicial practice, thus leading the guiding case system to a more perfect, scientific, reasonable and beautiful future.
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926.2

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