摘要
由最高人民法院公布的“典型案件”可以分为“地方法院典型案件”和“最高人民法院典型案件”。它对下级人民法院审理类似案件有参考、指导等事实上的效力。为了适应“典型案件”指导制度的实施,应当适当扩大“典型案件”的核准权限,废除案件请示制度和合并“典型案件”形成方式。尽管“典型案件”指导制度并不是比较法上的判例法,但是它发展的基本方向应是判例法。
In China, ＂ typical classes＂ refers to cases already happened and with special significance. ＂Typical Cases＂ issued by the Supreme Court can be divided into＂Typical Cases of the Local Courts＂ and ＂Typical Cases of the Supreme Court＂. The former is the judgment by the local courts, which are discussed by the sentence committee of the Supreme Court and published in The Supreme Court Gazette of the People＇s Republic of China. The latter is the judgment of the Supreme Court published in The Supreme Court Gazette of the People＇s Republic of China with a typical significance and guideline function. In fact, to assure that similar cases can be similarly dealt with, ＂Typical Cases＂ can be a reference and guideline for the local courts. To adopt the implementation of the ＂Typical Cases＂, it should properly expand the authorization scope of ＂typical cases＂, let the Superior Court undertook the function of authorizing ＂typical cases＂, and the Supreme Court only retains the register and review power. Administrative cases due to the application of local decrees, autonomous decrees and local government regulations should be reviewed by the Superior Courts. It should abrogate case instruction system, substituted with ＂typical cases＂ guidance system. It should incorporate the formula methodology of ＂typical cases＂, let the sentence committee of People Courts to authorize ＂typical cases＂, and publish it with serial numbers. It should also be applied to the ＂typical cases＂ published by the Superior Courts. From a comparative law viewpoint, case law cannot be the equivalence of ＂typical cases＂. China lacks the related survival environment for case law, but case law should be the direction of the future development of ＂typical ＂ cases .
出处
《浙江大学学报（人文社会科学版）》
CSSCI
2007年第3期159-165,共7页
Journal of Zhejiang University:Humanities and Social Sciences
