iv. case retrieval

(I) concept of case retrieval case retrieval is a process of inquiring, identifying and judging legal cases similar to case facts. A similar case refers to a case in which the case, petition, defense, evidence and other contents are similar except for the different names of the subjects involved, and even the court's judgment just meets our expectations. Case retrieval is suitable for complex cases. Every legal person's practice career can not only accept simple and clear cases, but also accept some challenging cases. These cases are either legal gaps or facts are difficult to distinguish. It is necessary to use previous case judgments as a reference and analyze them comprehensively, which is an important factor to consider an excellent lawyer's practice quality.

(2) The contents of case retrieval can include: (1) guiding cases issued by the Supreme People's Court; (2) Accepting relevant cases or judgment opinions published by the court; (3) Relevant cases or judgment opinions published by the Court of Appeal; (4) Relevant cases or refereeing opinions published by the retrial court; (5) Relevant cases or refereeing opinions published by the Supreme People's Court; (6) Relevant cases or refereeing opinions issued by other courts. In case retrieval, we should try to find cases that are similar to the cases you are handling, and it is very difficult to find 111% identical cases. Within the range we can retrieve, according to the determined retrieval proposition, it is quite good for each retrieval proposition to find cases that can support its views, and take cases with good arguments as their reference. After finding a supporting case, first focus on the trial results of the case. Generally, if it is a criminal case, then look at the sentencing period of the verdict. Removing the heaviest sentencing and the lightest sentencing will probably estimate the benchmark punishment and referee range space of such cases in the region; If it is a civil case, then focus on the "we think" part, because the "we think" part represents a kind of tendentious opinion or judgment reason of the court in this jurisdiction. We should understand the result of the trial first, and then understand the process of the trial, so as to reduce unnecessary time and improve efficiency. Summarize and analyze the gist and reasons of each case, and get a general evaluation result. Cases that are basically consistent with the facts of the case can be directly submitted to the court as reference materials. Although these cases will not be adopted as evidence by the court, most courts will quote your case judgment viewpoint as one of the reasons for judging this case.

(3) principle of case retrieval

1. Principle of similarity of facts The primary purpose of case retrieval is to find cases that are infinitely close to the facts of accepted cases. Only cases with similar facts can be used as reference, otherwise it will be out of the question.

2. among the retrieved valid cases, if there are any guiding cases or bulletin cases from the Supreme Court, the principle of authority first applies. Article 7 of the Provisions of the Supreme People's Court on Case Guidance stipulates: "The guiding cases issued by the Supreme People's Court should be referred to by people's courts at all levels when trying similar cases." Accordingly, the guiding cases of the two high schools have reference effect on the trials of people's courts at all levels.

3. The principle of geographical proximity If there are cases in this jurisdiction and its superior courts, it is closer to the facts of the case than cases in other places. Our country endows local governments and their departments with certain legislative rights and interests in legislation, so there are some differences in the application of legislative provisions in some specific disputes, so it is of great guiding significance to find the trial views of their own jurisdictions and their superior courts.

4. The principle of final judgment: The cases we retrieve must be final cases, especially the first-instance judgment cases. We need to search whether there is a second trial or even a retrial, otherwise there will be some errors in the retrieval.

(4) Case keyword retrieval method Keyword retrieval method is the most commonly used method for case retrieval at present. The key words should be extracted according to the requirements of the database used, the retrieval logic formula should be used appropriately, and the principle of fuzziness before accuracy, procedure before entity should be adhered to, so as to ensure that accurate case information can be retrieved by using key words. Keyword extraction is an extremely complicated learning process, which requires us to sum up the rules, enrich our legal knowledge reserves and form our own keyword extraction methods in many retrieval practices.

1. The extraction of keywords in case-based retrieval method should be based on the facts of the case. After we analyze the facts of the case and make clear the claims, we can form a retrieval proposition. If our retrieval proposition is quite refined, we can completely extract a few words from the retrieval proposition as our keywords for retrieval, among which the best words are words expressed in French, which generally reflect the legal causes involved in the facts of this case. Determining the legal cause of action can give us a general direction. I suggest that you read the Provisions on the Cause of Action of Civil Cases, and after learning and mastering 11 first-level causes of action, 54 second-level causes of action and 473 third-level causes of action, you can have a clearer understanding of the rules for arranging the cause of action, which is of great benefit to both case retrieval and case analysis. Take the case of whether the hotel should bear the responsibility if the wallet is stolen while the customer is eating in the hotel as an example. If we want to follow the litigation idea of contract dispute, we should determine the first-level cause of action "contract, negotiorum gestio, unjust enrichment dispute", then continue to locate the second-level cause of action "service contract dispute", and then refine it to the third-level cause of action "catering service contract dispute". After determining it, we should search it with words such as "theft" and "wallet".

2. Relevance retrieval method The retrieval of complex cases is not achieved overnight. It is necessary to skillfully use the relevance between information in continuous retrieval, starting with the initial determination of keywords, seeking relevant cases, and then being inspired by cases, discovering new keywords, and so on, until a suitable case is retrieved. Often, a successful retrieval is the extraction of one or two key information. As long as it can be extracted from the correlation of the retrieved information, more information can be brought out and the retrieval task can be completed. (1) Lexical association. Because the meanings of the keywords we extract are different from the legal meanings, we may expand or narrow the contents of the keywords, and search by transforming them into synonyms, synonyms, antonyms and derivative extension words (such as virtual currency → bitcoin and digital currency), and there may be unexpected gains. In addition, you can also enrich your own search form by lengthening keywords, combining keywords and other combination forms, and there is still a certain probability that quantitative change will lead to qualitative change. (2) case association. Taking the retrieved case information as a reference, it is a very good breakthrough to carefully review the plot similar to the investigated case and summarize new keywords from it, which is much more effective than imagining keywords in the face of the case. We should pay attention to search for new keywords from litigation request, controversy focus and trial viewpoint, because these parts are relatively refined debate and summary parts, and it is easier to retrieve new keywords. (3) Network information association. After searching the case facts on the web page, some information will appear, which is more or less related to a certain part of the case. Interpreting this information is also helpful for us to refine the keywords.

3. When we refine the keywords of the case, we also extract many keywords, which requires a certain division of the retrieval order of keywords, and orderly arrangement and combination from top to bottom according to the importance of keywords, which can save retrieval time. We can search according to the levels of core keywords, secondary keywords and general keywords. The core keywords should be qualitative words that can reflect the facts of the case, such as cause of action, legal relationship, behavioral summary vocabulary, behavioral elements qualitative vocabulary, etc. Take whether an act constitutes bona fide acquisition as an example. The cause of action is a property right confirmation dispute, the legal relationship is property right confirmation relationship, the behavioral summary vocabulary is bona fide acquisition, and the behavioral elements qualitative vocabulary is reasonable price. Secondary keywords are variable words of case facts, such as subject (principal and trustee, natural person and legal person), region (rural and urban areas), industry, goods and time. General keywords are words that reflect the requirements of case proceedings, such as court level and trial level, which can be classified according to their own retrieval habits. Only by forming their own retrieval step-by-step method can they be applied more freely. Because the range covered by keywords is different, the retrieval results will be very different: if there are few retrieval results, we should further try to match other synonymous or similar keywords to obtain more retrieval samples; If there are too many search results, the keyword range should be further narrowed. When all the possible keywords are grouped and layered reasonably, how to combine them is a question of arranging and combining them according to different retrieval purposes.

(5) Interpretation of retrieval cases

1. The structure of the judgment "On the making style of the first-instance judgment of domestic ordinary civil and commercial cases" and its explanation Part I: The first part includes: the parties, the legal representative or person in charge, the entrusted agent, the cause of the case, and the trial procedure of the case Part II: The factual statement of the case includes: the litigation request of the parties, the facts and reasons of the dispute, the cross-examination and court authentication of the parties, and the court's determination. 2 evidence identification and certification reasons; 3. Legal understanding and application of court decisions; 4 reasons for supporting or rejecting the litigant's claim; 5 summary. The fourth part: the main text of the judgment. The fifth part: the burden of litigation costs, the parties' right to appeal, the appeal period, the payment of the acceptance fee of the appeal case, the name of the court of appeal, the legal consequences of failing to pay the acceptance fee of the appeal case on time, the signatures of the members of the collegial panel and the date of judgment should be stated at the end.

2. Interpreting the judgment by layers (1) Explain the basic case. After retrieving the case, we should first look at the "found out by our court" part of the judgment document. Here is a refined description of the facts of the case by the court. For the purpose of their own litigation, the parties will intentionally or unintentionally go through some lengthy statements in the case, which is not conducive to our quick grasp of the case. However, if the court holds a fair attitude, the summary of the case will be concise and convenient for us. In our spare time, we should also learn the summary of the case process in excellent judgment documents, and the "finding out in our hospital" part is the best practical teaching material. Carefully study the "court identification" of dozens of bulletin cases, and see how the judge can artistically cut out the facts of the case according to his own judgment after synthesizing all the information. I believe that you will gain new gains from the overall grasp of the case to how to refine the abbreviations of the parties. (2) Subdivision of claims In the case of similar case facts, see if the claims of the parties are consistent with ours. If they are consistent, then look at the main text of the judgment; If it's not the same, save it for a rainy day, because the basic cases are similar, even if the claims are different, information related to our case may be involved in the process of argument. If we can't find other cases, we may ruminate later and have unexpected gains. What we should pay attention to is that the claim should be specific and clear. If it is ambiguous, it may not get the support of the court, or even be ruled to reject the claim. Although we only need to judge the behavior, evidence and legal basis of whether the claim can be supported when retrieving cases, we still need to understand the writing requirements of the claim when we specifically advocate the content of the claim. When encountering a lawsuit that needs to calculate the amount of compensation, it is difficult for a newcomer to the law to determine the compensation principal, determine the interest period and standard, and calculate the amount of breach of contract and interest. At this time, the advantages of case retrieval are highlighted. When we retrieve many similar cases, we can learn how to write about the amount of compensation in these cases to deduce the amount of compensation needed by our own cases. In a standard judgment, we can not only look at the litigation request of the parties, but also the judgment of the court. The judgment of the court is a response to the litigation request, and the judgments are specific and clear, otherwise it will not be implemented. (3) We can know the trial opinions of the courts in this jurisdiction by knowing the judgment opinions and making a preliminary judgment on the judgment part. We can preliminarily judge the possibility of winning the case through the opinions of several similar legal cases on the same issue, which is one of the purposes of our search. In addition, the judgment part of excellent judgment documents is a core part of our study documents, and the reasoning part of the court is concise and clear, which can connect the basic case, important evidence, legal interpretation and logical reasoning, and fully demonstrate the logical relationship between case facts and laws, which is very worth learning. Therefore, before writing the agency opinions, we might as well search the "we think" part of similar cases with similar cases to see which opinions can be borrowed and which precise expressions can be referenced, and constantly "polish" our agency opinions with the help of excellent judgment documents, which may also be an important embodiment of the vivid vitality of excellent cases. (4) Refining the focus of controversy We should realize that the retrieval proposition we determined in the preliminary retrieval is based on our knowledge of the case, which does not mean that we recognize all the focus of controversy in the case. By comparing the controversial focus of similar cases we retrieved, we can supplement our lack of understanding of the controversial focus of this case, make up our loopholes, and better prepare for the next comprehensive response to the case. In case retrieval, we mainly look at the judge's refining part of the controversial focus, so that we can directly and clearly grasp the relevant information. However, in the usual study, we can search many excellent judgment documents for a specific dispute case, compare and summarize the controversial focus of this specific dispute, and form our own response plan, which will be continuously improved in the future judicial practice. (5) Analysis of cross-examination opinions When we retrieve cases that are beneficial to us, if we are inexperienced in cross-examination, we can learn from the cross-examination of these cases. Especially, the logical argument between the legal person's opinions on the evidence and the facts is the focus of our study. Usually, to judge whether an agency opinion is excellent, an important reference indicator is whether the opinions in the agency opinion can be directly quoted by the judge in the "our opinion" section. Generally, the complete description of the cross-examination link is mostly in the first-instance judgment. In the documents in the second-instance or retrial stage, unless there is new evidence to cross-examine, the cross-examination content in the first-instance judgment will be directly quoted. Therefore, the search for the cross-examination content will focus on the first-instance judgment documents. In order to train our cross-examination ability, we can also select a certain type of dispute, take the initiative to retrieve relevant cases, and see how lawyers and judges cross-examine evidence in judgment documents and scientifically classify it to improve our cross-examination ability. Finally, for a specific evidence, such as the effectiveness of the sublease contract, how to express cross-examination opinions or how the court determines the probative force can be learned through retrieval. Admittedly, in case retrieval, in order to retrieve similar cases more quickly, we pay more attention to the core contents of the case, such as the litigation request and the content of the referee's point of view, but apart from retrieval, an excellent referee's text.