| 摘要: |
| 由于明确了食品标签不符合食品安全标准的判断方法，提供了明确的裁判指引，指导案例60号的被引频次大幅提升。与高被引频次并存的现象是指导案例的参照率畸低，实践效果并不显著。实证分析表明，参照指导案例60号须同时满足三项积极条件与两项消极条件，这些条件存在着判断标准模糊、对原始表述删减过度、隐藏核心规则等问题，拉低了指导性案例的参照率，同时指导案例60号还存在着裁判规则适用范围过窄等问题，对参照效果的发挥带来了负面影响。指导性案例的生成须尊重实践规律，通过释明判断标准、保留原始表述、明示核心规则、预测参照效果、扩大规则的包容性、优化案例类型结构等方式提升指导性案例的司法适应性，从而真正将指导性案例镶嵌到司法中去。 |
| 关键词: 指导性案例 案例援引 案例参照 案例生成 |
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| What Kind of Guiding Cases the Judicial Practice Exactly Needs： Taking the Guiding Case No. 60 as the Analysis Object |
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Zhang Hua
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| Abstract: |
| Since the guiding case No. 60 clarifies the judgment method of the food labels which do not conform to the food safety standards and provides clear judgment rules for the judiciary, the cited frequency of this guiding case has increased significantly. Although the cited frequency of guiding case No. 60 is high, the reference rate of this guiding case is very low, and its practical effect is not ideal. The empirical analysis shows that if a case should refer to the guiding case No. 60, the case must satisfy three positive conditions and two negative conditions simultaneously. These conditions have some problems, such as vague judgment criteria, excessive deletion of original expression and hidden core rules, which have lowered the reference rate of this guiding case. Meanwhile, there are also some other problems. For example, the application scope of the judgment rules of the guiding case No. 60 is too narrow, which has brought negative effects on the result of its reference. The generation of guiding cases must respect the rule of practice. To be specific, the judicial adaptability of guiding cases should be improved by clarifying judgment standards, retaining the original expressions, expressing core rules, predicting reference effects, expanding the inclusiveness of the rules, optimizing the structures of case types, etc., to fit the guiding cases into the judicial practice. |
| Key words: Guiding Cases, Case Quotation, Case Reference, Case Generation |
