On the Successful Conversion of Case Guidance System to Case System
On the afternoon of May 31, 2019, Professor Zhang Qi, School of Law of Peking University, was invited to attend the Law School of Nanjing Normal University, bringing a new lecture to the faculty and students. The theme of this lecture is "On Several Issues of Transition from Case Guidance System to Case System". The lecture was chaired by Professor Pang Zheng, School of Law, Nanjing Normal University. Nearly 50 teachers and students from the Law School of Nanjing Normal University attended the lecture. The lecture was well-ordered, exciting and applauded.
In the lecture, Professor Zhang Qi discussed several problems about the transition from case guidance system to case system from five aspects: First, why did Professor Zhang put forward the transformation? What kind of transformation? The precedent system is the soil and necessary mechanism for the survival and full play of the precedent. A healthy precedent system is also essential for the development of law. Then Professor Zhang Qi points out the key differences between the case system and the case guidance system from three aspects: quantity, effectiveness and generation mechanism. It is pointed out that it is realistic and urgent to establish the case system, which should start from the following four aspects:
First, change the perspective and positioning to increase the effective supply of cases. Professor Zhang first raised two questions from judicial practice: one is that the number and types of guiding cases are far from meeting the needs; the other is whether judges can make a negative evaluation of guiding cases. Secondly, we should look at the case from the judgment reason. From the relevant provisions of the Supreme Court, we can find that the nature of precedent is persuasive. Case is an informal source of law, which is subsidiary, secondary and derivative. Thirdly, we should orientate persuasion and open source for precedents. Finally, Professor Zhang Qi pointed out that the withdrawal of precedent could be carried out, but the res judicata of judgment should be maintained. The second aspect is to improve the institutional support mechanism of precedent by standardizing its use. First of all, the system is formed in use. The establishment of case law system needs to be implemented into the daily work practice of judges and be embodied in the working norms of courts. Secondly, the judge should make a judgment on the similarity between the trial case and the case. This is conducive to the better realization of the function of the case and its adjudication norms, and to the long-term development of the adjudication norms and the case system. Finally, it points out that the formation of case system and the development of adjudication norms are a continuous group practice. Third, through legal education, we can create conditions for the formation and development of the precedent system. Professor Zhang Qi believes that the core of legal education, which is crucial to the case system, is loyalty to the rule of law, the Constitution and the supremacy of law. The purpose of establishing case system is to realize the rule of law. Legal education should meet the professional, systematic and practical requirements. Fourthly, the construction of case law system needs to coordinate with other aspects of judicial reform. Case system is a part of the judicial system, and its construction is closely linked with the reform of judicial system. Therefore, we should have a holistic thinking and a sense of history in the construction of case law system. At the same time, it points out the internal and external conditions under which precedents play a role in China.
At the end of the lecture, Mr. Pang Zheng made a brief summary of the lecture, pointing out that the lecture is rich in content and enlightening. In particular, I would like to thank Professor Zhang Qi for his brilliant exposition on "Several Issues in the Transition from Case Guidance System to Case System", and for your active participation. At the same time, I am looking forward to Professor Zhang Qi's visiting lecture at the Law School of Nan Normal University again.
So far, the wonderful lecture lasting more than two hours ended with warm applause!