In 2005, the Supreme Court issued the Second Five-Year Reform Program for the People's Courts, in which it proposed to establish and improve the case guidance system. In 2006, the provincial court formulated and issued the "Shaanxi Higher People's Court Reference Cases Publication System", and in 2007, the provincial court created its own case publication, "Reference Cases", to publish cases selected from cases that have entered into force at all levels of the courts throughout the province, and have a guiding and reference function in the application of the law in the province's trial work. In 2007, the provincial court created its own case publication, Reference Cases, to publish cases selected from cases in force in courts at all levels throughout the province, which serve as guidance, reference and reference for the province's trials. Since its inception, "Reference Cases" has been compiled and issued 11 issues, *** published 77 cases, published cases can be said to be one in a hundred, and all by the Provincial Court of the trial committee to discuss and finalize. Can say, shaanxi court in the case guidance system of this series of exploration, is in the forefront of the national court, not only the rapid response, the timely introduction of the reference case release system, but also create a special reference case publication, become the national court system in a few create a special case publication of the provincial court. Moreover, the positioning of the reference case is accurate - the requirement is to select the decision has been effective and in the application of the law has reference value or significance of the case; the compilation and reporting procedures are strict - in the reference case published in all cases must be discussed and finalized by the provincial court adjudication committee, the purpose of the publication is to hope that through the "reference case" release system. The purpose of the publication is to hope that through the "Reference Cases" to introduce the best, to guide the province's court trial practice, unified law enforcement standards and adjudication standards.

On November 26, 2010, the Supreme Court issued the "provisions of the case guidance work," the "provisions" of the guiding case of the positioning, reporting procedures and other requirements and we refer to the case of the selection of the requirements are basically the same, so that we report to the Supreme Court alternative guiding case docking is relatively smooth, the purpose of the publication and the selection of the case of the principle of the principle of not needing to do too much to adjust the present "Reference Case" is not only the release of the province's courts at all levels of the trial committee to discuss and approve all cases, but also to guide the trial practice of the province's courts. Cases" is not only an authoritative carrier of typical trial cases of courts at all levels in the province, but also an important platform for recommending alternative guiding cases to the Supreme Court. In other words, the cases published on the reference case must be the alternative guiding cases that we want to recommend to the Supreme Court.

So, what kind of cases are worthy of reference cases to be published? What kind of case is worthy of further processing of the decision to write into the reference case? How can these cases be refined and written more accurately in place? Today, I mainly from how to select and prepare two aspects of the case to talk about their own experience.

We should be how to select the case

First, from the time, the requirement is the case of the last three years, so that can better guide the current trial practice. If the case itself, although the completion of the earlier, but the current trial is still a guide, the significance of the time can also be appropriately relaxed requirements.

Second, the guiding case requirements for the effective refining and summarizing the case, not beyond the case to be derived. Reference to the case to have been effective decision to make a profound analysis, revealing the judge to decide the heart of the process, to solve similar cases have guidance or reference value. It is different from some academic seminars, so to summarize the refining around the effective referee, for those who disagree with the results of the case, such as the first instance contractor judge written by the second instance judge to change the verdict, their own different understanding of the case, or non-undertaker of the judge's preparation of the results of the decision of the case has a different view, does not meet the requirements of the case for reference, can not be used as a reference to the preparation of the case, can be other case review The way to appear.

Third, the requirement that the case has a certain value or contribution to the method of adjudication. This is the substantive requirements of the reference case. Refereeing method is reflected in the refereeing of specific cases throughout the process, which itself has a scientific internal law. This scientific method of analysis does not have specific legal provisions to tell you what to do, and this scientific method of adjudication through the reference case guidance is more intuitive, vivid and clear. For example, the judge in the application of the law, there are some difficulties, some do not have the corresponding legal provisions; some of the principle provisions, but some of the concepts have a variety of interpretations, the need to determine the specific case of whether the situation is in line with the principle provisions, etc., in response to the above problems, if you can scientifically apply the method of adjudication, creativity, and appropriately solved the case of the difficult problem, such a case is that we are selecting Such cases are what we need when selecting cases. Specifically divided into the following cases:

(a) the law does not expressly provide for the use of scientific rules of adjudication, and the spirit and purpose of the legislation, and in line with the folk customs of our country, the adjudication of the appropriate resolution of conflicts. Such as we selected in the "reference case" on the Zhang Dongmei v. Wang Zhijun right to life disputes, Liu Hongli and Wang Zhijun and other six defendants dinner, during the *** drink 2 pounds of white wine, after the meal, Liu Hongli alone motorcycle ride away on the way to the traffic accident, resulting in his death. Accident certificate recognizes Liu Hongli negative accident full responsibility. Afterwards, Liu Hongli's wife Zhang Dongmei that Wang Zhijun and other six defendants know Liu Hongli drinking, did not escort his safety, resulting in his death in a drunken bicycle accident, should bear some responsibility. Wang Zhijun and other six defendants argued that there is no need to Liu Hongli safety escort, do not bear any responsibility for his death. Shangzhou district court that: Liu Hongli drunk driving without a license in a one-sided traffic accident death of the facts are clear. Liu Hongli is a full capacity for civil behavior, due to its own behavior of the consequences of the damage should be primarily responsible. Six defendants and Liu Hongli dinner **** drinking, Liu Hongli drink driving behavior has a duty of safety, and their failure to fulfill the obligation, the consequences of death of Liu Hongli should bear some responsibility, but the six defendants' responsibility is obviously light, it should be 90% of the responsibility of Liu Hongli, the six defendants 10% responsibility. After the judgment was pronounced, neither party appealed. The focus of this case is: *** drink participant to other *** drinker's personal safety what obligation? To other *** drinkers drink caused by the damage is liable for compensation? At present, China's laws and regulations have not been clearly stipulated in the *** drinker to other *** drinker's safety obligations. Article 6 of the Interpretation of Several Issues on the Trial of Personal Injury Compensation Cases stipulates that: the people's court shall support the request of the person entitled to compensation for personal injury suffered by another person as a result of the failure of natural persons, legal persons and other organizations engaged in lodging, food and beverage, entertainment and other business activities, or other social activities to meet their obligations of safety and security to the extent that such obligations are within the bounds of reasonableness. This article is only the principle of the obligation of safety and security provisions. Then, in the absence of clear legal provisions, the judge can not refuse to adjudicate, only according to the spirit of the legislation, the use of scientific methods of adjudication, to make the parties and the community to accept the decision. The case, embodied by the judge's referee thinking is this: *** drink behavior is a spontaneous, autonomous behavior, in normal interpersonal communication is impossible to avoid. *** Drinkers should have a duty of reasonable care for personal safety among themselves, including the duty of mutual reminder, advice, care and assistance that should be assumed by the drinkers to minimize the risk of safety. If a *** drinker is negligent in fulfilling such a duty, he or she is objectively negligent and should be liable for the personal injury of other *** drinkers. However, this liability is again limited because the *** drinker's duty of safety and security cannot replace the drinker's own safety awareness and duty of care. The victim of this case Liu Hongli as a fully capable person should have rational judgment on the consequences of their own behavior, should be reasonable control of their own drinking and drunken behavior, and other **** drinkers on the victim's control is obviously inferior to the victim, so the victim should bear a higher duty of care for the safety of the victim's own results of the damage to the primary responsibility, and **** drinkers bear secondary responsibility. It was appropriate for the court to determine that the six defendants should bear 10% of the responsibility according to the specific circumstances of the case. Such a ruling is conducive to the creation of a general restraint on drunkenness safety in the drinker's neighborhood. As far as this case is concerned, the judge took into account the principle provisions of the existing law on the duty of safety and security, and interpreted the legal provisions that were not specific enough by value-added methods, clarifying the rules of the duty of safety and security of the *** drinker, reflecting the important value of focusing on personal safety and social public *** safety. This concept of adjudication is in line with the spirit of the law and the purpose of the legislation, it is worthwhile to solve similar cases to be drawn on, reference.

(ii) the corresponding provisions of the law, but in the application to specific cases, with a variety of interpretations, the need to use scientific methods to explore the true meaning of the legislation, to ensure that the case ruling accurate. Such as Jing Lianquan v. Xi'an Municipal Bureau of Labor and Social Security, the third Shaanxi Dipu Investment Group Co., Ltd. administrative confirmation of work injuries, the main dispute is Jing Lianquan to the Xi'an Municipal Bureau of Labor and Social Security Bureau to submit an application for recognition of work injuries, whether more than the "Regulations on Work Injury Insurance," the second paragraph of Article 17 of the one-year time limit for the application. Jing Lianquan argued that he had repeatedly approached the third party to claim his rights, but the third party delayed the process, because he had been claiming his rights, so it did not exceed the time limit for applying for work injury recognition. The defendant Xi'an Municipal Bureau of Labor and Social Security held that when Jing Lianquan submitted the application for work injury recognition, it had exceeded the one-year time limit for application for recognition of work injuries, so his application was not accepted. This case in processing, although the focus of the dispute between the two sides, there are clearer legal provisions, "work-related injuries insurance regulations," article 17, paragraph 2, "the employer did not put forward in accordance with the provisions of the preceding paragraph of the application for recognition of work injuries, the injured employee, or his immediate family, trade union organizations in the date of the accidental injury, or diagnosed, diagnosed with occupational diseases within one year from the date of the date of the accidental injury, you can directly to the The labor security administrative department of the coordinating area where the employer is located may directly apply to the labor security administrative department for the recognition of work injury." However, the difficulty lies in the different understanding of the "one-year application period". Here, "one year application period" is a constant period, or belong to the period of limitation can be suspended, interrupted, extended, no clear provisions. Then, how should we understand this issue is more scientific? This case from the legislative purpose, the legislative intent to analyze, that for workers and their immediate family members, they can according to the "work-related injuries insurance regulations," article 17, paragraph 2, directly to the administrative department of labor security, in order to start the work-related injuries recognition application, which is a right given by law, should not be too much to set up obstacles. Moreover, only after the labor security administrative department has made a valid determination of work injury in accordance with the law, the injured employee enjoys the right in the substantive sense. Therefore, when the employer does not fulfill the obligation to apply according to law, the right given to the employee or his immediate family members to apply directly for the recognition of work injury shall be a procedural right to apply rather than a substantive right. Based on this understanding, as the limitation system applies to suspension, interruption and other circumstances, compared with the invariable period is more flexible, not only can maximize the protection of the legitimate rights and interests of the right holder, but also prompt the right holder to exercise their rights in a timely manner. Thus, the second paragraph of Article 17 of the Regulations on Workmen's Compensation Insurance on the provision of one year, understood as the limitation system is more in line with the legislative purpose of the regulations, the protection of the legitimate rights and interests of the injured employee is more powerful. The concept of the case and the understanding of this "1 year application period", we believe that is in line with the intent of the law, was selected for inclusion in the "Reference Cases".

(c) The law has principle provisions, but there are corresponding concepts that need to be scientifically interpreted and applied to specific cases, to ensure that the decision to achieve substantial fairness and appropriateness. Such as Yan'an Hongsheng Construction Engineering Co., Ltd. does not serve the Yan'an City Safety Production Supervision and Administration Bureau of production liability accident approval case, which is an administrative dispute, the case focuses on the defendant Yan'an City Safety Production Supervision and Administration Bureau to make the "on the ZiChang County," "10.21" construction site tower crane collapse accident investigation report. Approved reply" (hereinafter referred to as "approved reply") is actionable. Appealed "reply" in form belongs to the internal operation of the administrative organ of the internal administrative act, usually, because of the internal administrative act on the rights and obligations of citizens, legal persons and other organizations has not yet produced actual impact, so not as the scope of administrative litigation. In this case, after the "approval", although not formally to Hongsheng company delivery, but as one of the members of the accident investigation unit of ZiChang County Supervision Bureau will be approved as the content of the conversation to inform the appellee Hongsheng company, and sent a copy of the "approval", has been in the exercise of administrative powers and responsibilities will be the externalization of the content of the approval, and the "approval" will be listed as Hongsheng company, and asked for penalties, for the Hongsheng company set up The Approval has set certain obligations for Hongsheng Company, which has actual influence on Hongsheng Company, and the Approval has an interest in Hongsheng Company. In summary, the case of the "reply" in the form of internal administrative acts, but has been externalized through the administrative organs of the powers and responsibilities of the relative rights and obligations of the substantive impact, belongs to the scope of administrative litigation. This case is very typical, guide the judge in dealing with such issues, can not be rash only for formal review, or stay on the literal understanding of the legal provisions, to fully understand, grasp the spirit of the law, to ensure that the case decision to realize the substance of the fair and proper.

In short, the cases we select should be those that are practical and instructive in the application of the law, typical, and embodying a method of adjudication that has a certain value or contribution.

What should we write the case

A reference to the preparation of the case

"Reference to the case" to determine the preparation of the style of the following six parts: title, key points, case index, the case, the trial, the commentary. Below, I organized in accordance with the body before and after the order, in order to make a brief introduction:

(a) the title. The title consists of the name of the parties to the case and the cause of the case, generally in the form of so-and-so v. so-and-so plus the cause of the case, such as Wang Yaoli v. Xi'an Daily Newspaper infringement of copyright disputes; criminal cases by the name of the defendant and the cause of the case, such as the case of credit card fraud Liang Kai.

(ii) key tips. Is the essence of the case, reflecting the typical significance of the application of law. Preparation should be briefly summarized and distilled in the case embodied in the guiding significance of the important rules of adjudication, philosophy or methodology, should be summarized, accurate, concise, rigorous structure, concise expression, semantics, the adjudication of similar cases have a guiding significance, revelation.

(C) Case index. The case involves all the legal instruments case number and made time, easy to search. For example: the first instance: so-and-so court of several civil judgments, followed by the production time.

(d) the case. Including the facts found by the court and the parties to the focus of the dispute, litigation requests. Generally first accurately summarize the pleadings, and then recount the court after trial to ascertain the facts, but also can directly recount the facts identified by the court trial. This part of the content should be comprehensive and accurately reflect the facts based on the court decision, and requires a clear hierarchy, focused, detailed and appropriate, concise.

(E) trial. Mainly the court for the case of the trial process, the results and reasons. Including the second trial or retrial of the court found the facts, the results and reasons. The part of the content to be faithful to the original appearance of the judgment, but pay attention to try not to repeat, such as the second trial court found the facts, if the same as the first trial and has been described, you can use the "second trial court found the same facts as the first trial" to indicate. The part to write the legal provisions cited in the referee.

(F) Commentary. The content of the part to echo the main points of the tips, the content of the case focus of the controversy, to be based on the facts of the case, the law, judicial interpretation and legal theory, a detailed discussion of the correctness and fairness of the court's decision. Can be appropriate on the basis of the reasons for the referee to enrich, but can not be contradicted with the referee's discussion, and can not appear in the reasons for the facts not expressed earlier. The reasons for the decision should focus on the main issues of the case, the focus of controversy or disagreement, and fully elucidate the guiding value of the case. Reasoning should be accurate, thorough, targeted and persuasive.

Second, the reference case of several methods of writing

We issued a reference case is to be fixed through the body of norms, clearly guide the judge from the case of "what to learn", and know "why" to learn it. Among them, the main points prompted part of the clear guidance scope of the case, is extracted from the judgment, the judgment of the legal thought content provides a concise, abstract description, is the most instructive part of the case, should become the judges to deal with the same type of cases *** with the same follow the trial of thinking, to solve the judges from the case of "what to learn" of the problem; commentary part is around the main points of the case, "what to learn" of the case; the case is to be clear, and know "why" to learn it. Commentary part of the scientific referee around the key tips to develop the thinking process of refining and analysis, is the embodiment of the wisdom of the application of the law, to solve the problem of the judge "why" should be so thinking. These two parts should be the soul of the case preparation, but also the case preparation of the difficulty, where the focus.

(a) the preparation of the key tips

The key tips in the preparation of the judge to highlight the specific cases in the referee in the application of the law, the referee method, the judicial philosophy of the issue of judgment, these judgments in the referee at the time of the creativity, and the handling of similar issues in the future has a general guiding significance. It can be an interpretation of the current law, reflecting the judge's interpretation of the law and the specificity; can also be a judgment of a certain factual state belongs to or does not belong to a certain legal concepts, etc., in the preparation, should pay attention to the following requirements:

1, accurately capturing the case in the application of the law in the contribution of the case

First of all, the judge should be accurately captured in the application of the law in the contribution of the judge. It is a summary of the most fundamental or original legal ideas in the case, and is the highlight of the case. The main points suggest that first of all, to be able to reflect the judge's judgment, and secondly, to have a contribution that is not already clear legal provisions or trial practice has been regulated. Finally, there should be a summary of the rules of adjudication and a clear solution. The narrative should not merely present the background, legal implications and adjudication considerations without informing a clear conclusion or solution.

For example, in the case of Jing Lianquan v. Xi'an Municipal Bureau of Labor and Social Security, and the third party, Shaanxi Dipu Investment Group Co. Ltd. of Work Injury Administrative Confirmation, which we introduced earlier, the original key point prompts were written as follows:

Before the amendment: the second paragraph of Article 17 of the State Council's Regulations on Work Injury Insurance stipulates that, in the event of a work-related injury, the injured employee, his or her immediate family members, and the trade union organization may, if the employing unit does not submit the required When the employer fails to make the required application for the recognition of work injury, the employee, his immediate family members and the trade union organization may apply for the recognition of work injury within 1 year from the date of occurrence of the accidental injury or the date of diagnosis or appraisal of occupational disease. However, the regulations do not specify the nature of the 1-year application period. The significance of the decision in this case is that, by distinguishing between the different legal connotations of the concepts of time limit, statute of limitations, and period of time, and using the legislative intent and spirit of the legislation as the entry point to define the rights and obligations of the legal concepts, it advocates the implementation of the concept of justice for people's livelihoods in the adjudication of administrative cases of work-related injuries insurance, protects the disadvantaged groups, and promotes fairness and justice in society, and achieves social harmony.

Such points prompted only to raise the issue, introduced the significance of the decision, did not write the judge's judgment, did not summarize the judge to solve the problem of the approach, there is no refining of the rules of adjudication. This case we consider the law is clear, the main contribution to the understanding of the "one year application period". Modified this way:

Modified: "Work Injury Insurance Regulations," Article 17, paragraph 2, provides that: "the employer did not apply in accordance with the provisions of the preceding paragraph of the recognition of work injuries, the injured employee or his immediate family, trade union organizations in the date of the accidental injury, or diagnosed, diagnosed as an occupational disease within one year from the date of diagnosis, can be directly to the employer's location of the co-ordination of regional labor security administrative departments to propose a work injury. Within one year from the date of occurrence of the accidental injury or the date of diagnosis or identification of the occupational disease, the injured employee or his immediate family members of the trade union organization may apply directly to the administrative department of labor security of the place where the employer is located for the determination of the work injury. Here the "1 year application period" should be understood as the concept of limitation, can be applied to suspend, interrupt the situation.

2, accurately summarize the rules

The main point of the prompt should be said to be the judges *** with the study of the application of the law of the experience of the judges in the case of the application of the law of the method of summarizing, refining, processing of the rules of adjudication, is the judges in the future in the handling of similar issues should be referred to or learn. Therefore, first of all, the language expression should be specialized and standardized, and try to use the concepts and expressions common to laws and regulations and judicial interpretations. Secondly, there should be generalization, which can accurately summarize the legal points of the case, including the disputed legal issues in the case, as well as the rules and principles of dispute resolution. Finally, it should be abstract. This is the most important. Although it depends on the case, but not only for the case, to be higher than the case, to extract a universal referee ideas and methods applicable to similar cases in the future.

For example, the previously mentioned Yan'an Hongsheng Construction Engineering Co., Ltd. does not serve the Yan'an Municipal Bureau of Work Safety Supervision and Administration of the production of liability accidents approved by the case of the main points of the prompts we are so prepared:

The internal administrative act through the administrative organs of the powers of the act of externalization of the relative rights and obligations have a practical impact, can be included in the scope of the administrative litigation.

The summary of this tip originated from the case, but has been higher than the case. After refining, has been generalized, abstracted, applicable to a class of issues: that is, although the surface of the internal administrative act in the form of, but the act if the administrative organs through the externalization of the powers and functions of the act, the rights of the relative, the obligations of the actual impact of the administrative litigation can be included in the scope of the case. This rule guides the judge in the future in the hearing of similar cases should do a comprehensive, substantive review, to fully and accurately grasp the purpose of the spirit of the legislation.

3, the summary should be comprehensive, specific, accurate

The preparation of a summary of the main points prompted to summarize neither expand, nor although small, to be just right, pay attention to the accuracy of the language, standardization, to avoid ambiguity. For example, Liang Kai credit card fraud case, the basic case is: Liang Kai picked up the victim lost ID card, credit card, the use of ID cards to crack the password, and then pretend to be the cardholder, in different places has been repeatedly withdrawing the card cash more than 60,000 yuan. The court ruled that Liang Kai committed credit card fraud, sentenced to five years in prison and a fine of 50,000 yuan. The key tips of the case were originally written like this:

Before the amendment: picking up other people's credit cards and then fraudulently using them, constituting the crime of credit card fraud.

We believe that the summary is not comprehensive and specific enough, especially on the key words "fraudulent use" does not have the necessary, illustrative understanding or summary. When submitting the alternative guiding case to the Supreme Court, we modified it.

Modified: after picking up another person's credit card, by cracking the password method, and pretend to be the legitimate cardholder maliciously withdrawing the funds in the card, the amount of larger, constituting credit card fraud.

(B) the preparation of the commentary

Commentary should be the case is more difficult to write the part. The most critical point in the preparation of the commentary is that it should be closely related to the focus of the controversy in the case, the views of the referee, the reasons, the results of comments, analysis, in order to deepen the understanding of the case.

First of all, the content of the commentary section generally includes: the characterization of the case, factual findings, the use of evidence, the application of the law, the determination of responsibility or sentencing, as well as procedural comments; analytical comments on the existence of the problem and the solution; the necessary introduction to the content of the law, judicial interpretation. Comments vary from case to case, highlight the key points, specific analysis, do not cover everything.

Secondly, the commentary should be prompted with the main points, the content of the case echo. Preparation should be from the importance of the case, instructive, accurate, authoritative point of view of the case in the establishment of the rules of adjudication, the application of legal methods, the development of adjudication theory and other aspects of the success or failure of the analysis. In particular, where the reasoning in the trial part is insufficient, it should closely follow the corresponding legal provisions and focus on analyzing the legal reasoning and interpretation process of how the case explains the specific adjudication rules from the general legal provisions. Legal arguments that are not controversial, or rules of decision that have been generally recognized and have not been newly developed in the case, should not be commented upon. Facts of the case not mentioned in the merits section should not appear in the commentary.

Third, the language of the commentary to strive for plain, accurate, thorough, as long as the controversial issues thoroughly on the line, to avoid too academic language or too long.

Thirdly, the language of the commentary should be plain, accurate and thorough.