(A) the concept of case retrieval
Case retrieval is a process of inquiring, identifying and judging legal cases similar to case facts. Similar cases refer to cases with similar contents, such as cases, pleadings, pleadings, evidence, etc., 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 career can accept not only simple and clear cases, but also some challenging cases. These cases are either blank in law or the facts are difficult to distinguish. It is an important factor to consider the quality of an excellent lawyer's practice to make a comprehensive analysis based on previous case judgments.
(2) the content of case retrieval
Through case search, according to the trial level and regional differences, it can include: (1) guiding cases issued by the Supreme People's Court; (two) to accept the relevant cases or judgments published by the court; (3) Relevant cases or judgments published by the Court of Appeal; (4) Relevant cases or judgment opinions published by the retrial court; (5) Relevant cases or judgment opinions published by the Supreme People's Court; (6) Relevant cases or judgment opinions issued by other courts.
In case retrieval, it is very difficult to find a case similar to the case you are dealing with, and it is very difficult to find a case with the same 100%. Within the range that we can retrieve, according to the determined retrieval proposition, it is quite good for each retrieval proposition to find a case that can support its point of view and take the case with good arguments as a reference.
After finding the supporting case, focus on the trial result of the case first. Generally, if it is a criminal case, it depends on the sentencing period of the judgment. If the heaviest penalty and the lightest penalty are removed, it will probably estimate the benchmark penalty and referee range space of such cases in this area; If it is a civil case, then focus on the "we think" part, because the "we think" part represents a biased opinion or judgment reason of the court in this jurisdiction. We should know 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 accepted by the court as evidence, most courts will quote your judgment view as one of the reasons for judging this case.
(C) the principle of case retrieval
1. Principle of fact similarity
The main purpose of case retrieval is to find a case that is infinitely close to the facts of the accepted case. Only when the facts of the case are close can it be used as a reference, otherwise there is no way to talk about it.
2. The principle of authority priority
Among the valid cases retrieved, if there are guiding cases or announcement cases of the Supreme Court, priority will be given. Article 7 of the Supreme People's Court's Provisions on Case Guidance stipulates: "People's courts at all levels shall refer to the guiding cases issued by the Supreme People's Court when trying similar cases." Accordingly, the guiding cases of the two high schools can be used for reference in the trial work of people's courts at all levels.
3. The principle of geographical proximity
If there are cases in this jurisdiction and its superior courts, this 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 certain differences in the application of legislative provisions in some specific disputes. It is of great guiding significance to find the trial views of their own jurisdictions and their superior courts.
4. The principle of final appeal
For the cases we search, they must be final cases, especially those judged in the first instance. We need to search whether there is a second trial or even a retrial, otherwise there will be some mistakes in the search.
(D) Case keyword retrieval methods
Keyword retrieval is the most commonly used method for case retrieval at present. To extract keywords, it is necessary to meet the requirements of the database used, properly use the retrieval logic formula, and adhere to the principles of fuzzy first, accurate first, and procedural first, so as to ensure that accurate case information can be retrieved by using keywords. Keyword extraction is an extremely complicated learning process, which requires us to summarize the rules in many retrieval practices, enrich our legal knowledge reserves and form our own keyword extraction methods.
1. cause of action search method
The extraction of keywords should be based on the facts of the case. After we analyze the facts of the case and make clear our opinions, we can form a retrieval proposition. If our retrieval proposition is quite refined, we can completely extract several words from the retrieval proposition as keywords for our retrieval, among which the best words are those expressed in French, which generally reflect the legal reasons involved in the facts of this case. Determining the legal cause of action can give us a general direction.
I suggest you read the Provisions on the Cause of Action of Civil Cases. After learning and mastering 1 1 first-level cause 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 causes of action, which is of great benefit to case retrieval and case analysis.
Take the case of whether the hotel should bear the responsibility for the theft of the wallet when the customer is dining in the hotel. If we want to follow the litigation thinking of contract disputes, we should first 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 into the third-level cause of action "catering service contract dispute". After confirmation, search with words such as "theft" and "wallet".
2. Associated retrieval method
The retrieval of complex cases is not achieved overnight. We need to skillfully use the correlation between information in continuous retrieval, starting with the initial determination of keywords, looking for relevant cases, then getting inspiration from cases, finding new keywords, and so on, until we find the right cases. Usually, successful retrieval is to extract one or two key information. As long as it can be extracted from the relevance of retrieval information, it can bring out more information and complete the retrieval task.
(1) Lexical association. Because the meaning of the keywords we extracted is different from the legal meaning, we may expand or narrow the content of the keywords, and search by transforming them into synonyms, synonyms, antonyms and derivative extension words (such as virtual currency → bitcoin, digital currency), which may have unexpected gains. In addition, you can enrich your 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 plots similar to the investigated cases and sum up new keywords from them, which is much more effective than imagining keywords in the face of cases. We should pay attention to searching for new keywords from litigation requests, controversial issues and trial viewpoints, because these parts are relatively refined debate and summary parts, and it is easier to retrieve new keywords.
(3) Network Information Association. After searching for the facts of the case on the web page, some information will appear, which is more or less related to a certain part of the case. Interpreting this information also helps to refine our keywords.
Step by step method
When we refine the keywords of the case, we also extract a lot of 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. Core keywords should be qualitative words that can reflect the facts of the case, such as cause of action, legal relationship, summary vocabulary of behavior, qualitative vocabulary of elements of behavior, etc. Take whether an act constitutes bona fide acquisition as an example. The cause of action is a dispute over the confirmation of property rights, the legal relationship is the confirmation of property rights, the general vocabulary of behavior is bona fide acquisition, and the qualitative vocabulary of behavior elements 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), industry, goods, time, etc. General keywords are words that reflect the litigation requirements of cases, such as court level and trial level, which can be classified according to their own retrieval habits. Only by forming your own step-by-step retrieval method can you apply it more freely. Because of the different coverage of keywords, 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, you should further narrow down the keyword range. When all possible keywords are grouped and layered reasonably, how to combine them is a problem of arranging and combining according to different retrieval purposes.
(v) Retrieve the explanation of the case.
1. The structure of the judgment
On the way of making the first-instance civil and commercial judgment of ordinary procedure in China and its interpretation
Part I: Part I
Including: the parties to the case, the legal representative or person in charge, the entrusted agent, the cause of action and the trial procedure.
Part II: Statement of the facts of the case.
Including: the litigation request of the parties, the facts and reasons of the dispute, the cross-examination and court authentication of the parties, and the facts recognized by the court.
Part III: Reasons.
Including: 1 fact finding; 2. Evidence identification and reasons for proof; 3. Legal understanding and application of court decisions; Reasons for supporting or rejecting the claim; 5 summary.
Part IV: The text of the judgment.
Judgment item
Part V: Tail
At the end, the burden of litigation costs, the parties' right to appeal, the time limit for appeal, the payment of the acceptance fee of the appeal case, the name of the court of appeal, the legal consequences of not paying the acceptance fee of the appeal case on time, the signatures of the members of the collegial panel and the date of sentencing shall be clearly stated.
2. Hierarchical interpretation of judgments
(1) Explain the basic situation.
When transferring a case, we must first look at the "court identification" section in the judgment document. This is a concise description of the facts of the case by the court. For the purpose of their own litigation, the parties will make lengthy statements about the case intentionally or unintentionally, which is not conducive to our quick grasp of the case. However, the court upholds a fair attitude and briefly summarizes the case, which is convenient for us to quickly check and compare the facts of the case and judge whether it is a valid case.
In my spare time, I have to learn the summary of the case process in excellent judgment documents, and the part of "finding out in our hospital" is the best practical teaching material. Carefully study the "court appraisal" of dozens of public announcement 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 get new gains from the overall grasp of the case to how to refine the abbreviations of the parties.
(2) Subdivision of claims
If the facts of the case are similar, it depends on whether the claims of the parties are consistent with ours. If it is consistent, let's go on to look at the text of the judgment; If it is different, we should plan ahead, because the basic cases are similar, even if the opinions are different, the information related to our case may be involved in the process of argumentation. If you can't find other cases, you may ruminate later, and there will be 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 know the writing requirements of the claim when specifically claiming the content of the claim. When encountering a lawsuit that needs to calculate the amount of compensation, it is difficult for a novice lawyer to determine the principal of compensation, determine the interest-bearing period and standard, and calculate the amount of liquidated damages and interest. At this time, the advantages of case retrieval are highlighted. When we retrieve many similar cases, we can learn how to write out the compensation amount in these cases to deduce the compensation amount needed by our own cases.
A standard judgment depends not only on the litigant's claims, but also on the court's judgment. The judgment of the court is a response to the litigation request, and the judgment is specific and clear, otherwise it will not be implemented.
(3) understand the referee's point of view
Through the preliminary judgment of the judgment part, we can know the trial opinions of the courts in this area. Through the opinions of several similar legal cases on the same issue, we can preliminarily judge the possibility of winning the case, which is also one of our purposes.
In addition, the judgment part of excellent judgment documents is a core part of our study documents, and the court reasoning part is concise and clear, which can link the basic case, important evidence, legal interpretation and logical reasoning, and fully demonstrate the logical relationship between case facts and law, which is very worth learning. Therefore, before writing agency opinions, we might as well use similar cases to search the "we think" part of similar cases to see which opinions can be used for reference and which precise expressions can be used for reference, 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 controversial focuses of the case. By comparing the controversial focus of similar cases we have collected, we can supplement our ignorance of the controversial focus of this case, make up for 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 for many excellent judgment documents for a specific dispute case, compare and summarize the controversial focus of this specific dispute, form our own response plan, and constantly improve it in the future judicial practice.
(V) Analysis of cross-examination opinions
When we retrieve favorable cases, if we have no experience in cross-examination, we can learn from the cross-examination of these cases. In particular, the logical argument between the legal person's three characteristics of evidence and the factual claim of a certain point of view is the focus of our research. It is usually judged whether an organization's opinions are excellent or not. An important reference indicator is whether the opinions in the institutional opinions can be directly quoted by the judges in the "Our Opinions" section.
Generally, the complete description of cross-examination links is mostly in the judgment of first instance. In the documents in the second trial 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 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 collect 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, we can understand it through retrieval.
It is true that in case retrieval, in order to retrieve similar cases more quickly, we pay more attention to the core content of the case, such as litigation request, judgment point of view, etc., but apart from retrieval, an excellent judgment document can play a more important role for legal persons than the above aspects. Take the description of the pleading process of a judgment document as an example. Through the analysis of the pleading process, we can not only understand the views of both sides on the issue, but also think about the reasons for the trial results from multiple angles.
In the process of interpreting judgment documents, the opinions of the original defendant and the judge are objectively summarized and analyzed from the perspective of bystanders, and the thinking angles and legal explanations of the three parties on the same issue are seen, so as to comprehensively interpret an excellent judgment document.
Verb (abbreviation of verb) retrieval and review
In the process of legal retrieval, we will retrieve a lot of information. If we use all the retrieved information without auditing, there may be mistakes. Therefore, in the process of legal retrieval, we should establish a sense of review to ensure that the retrieved information is true and effective before it can be applied.
(A) the awareness of case retrieval confirmation
Generally, the cases retrieved from professional databases are true, but the existence of false cases cannot be ruled out. Therefore, it is best to retrieve the retrieved cases in more than two databases, and mutual verification between the two databases is a safer choice. In addition, for the retrieved cases, you can also search the judgment document website of the court of first instance according to the case information. If it can be found, it is true.
We should pay special attention to the judgment documents of the first instance, and check whether there is any judgment of the second instance or retrial, so as to prevent the disagreement between the first instance and the final instance from affecting our judgment on the case.
(B) legal retrieval authority consciousness
Checking the retrieved articles is relatively simple. As long as we can find the article in the legal provisions promulgated by the existing authority, we can prove that the article is true. In addition, the retrieved articles should be reviewed according to the requirements of "article retrieval qualification".
Six, retrieval analysis
Retrieval analysis is a process of judging the facts of this case according to articles and similar cases retrieved by law. No matter how to search for laws or cases, it is to provide reference for the factual judgment of this case. It plays a decisive role in our litigation process to summarize the retrieved information and draw the retrieval conclusion.
The retrieval analysis starts with the litigation request, and through the analysis of the retrieval propositions of the collected effective cases, we can see which opinions support and do not support the litigation request, and summarize the names of cases that support or do not support these opinions, with simple reasons, and draw the retrieval conclusion. By comparing the reasons for supporting and not supporting, we can clearly know the usual attitude of the court to the case. When the conclusion of the case is favorable to us, we should pay attention to those unfavorable reasons and be prepared for defense. When the case is unfavorable to us, we adhere to the concept of "exhausting all ideas", change our thinking, change our perspective, and rearrange our defense ideas in order to obtain new breakthroughs.
VII. Search Results-Search Report
The final result of legal retrieval should be presented in the form of retrieval report. According to different demand subjects, the focus of the retrieval report is different, but the collection of initial retrieval data is basically the same. In the complex retrieval process, we can determine our retrieval purpose through the retrieval proposition table before retrieval, and the retrieval rules and case tables in retrieval present the data information we have retrieved; The retrieval analysis and conclusion table after retrieval draw the conclusion of retrieval, and finally present the retrieval report according to the needs of the subject. Simple retrieval can determine the presentation form of retrieval report according to its own needs.
The retrieval report is not necessary, but the retrieval trace (such as retrieval proposition, retrieval case and retrieval rule) is very important. If the search results are clear and the basis is relatively simple, you don't need to write a search report, just specify the search results. Only when the search items are numerous, the legal basis is uncertain, and the conclusions pointed by the reference cases are not unique, it is necessary to organize the search results in the form of reports to facilitate readers to obtain the required information quickly. However, search tags are for ourselves and are an important source of our search learning.
The retrieval proposition table includes four parts: The first part is about our retrieval statistics, including retrieval time, database and background knowledge. Background knowledge is to introduce some professional terms, specific terms and new vocabulary network's search to help others better understand the case; The second part is the introduction of the basic case, which determines the cause of action by refining and summarizing the facts of the case; The third part is about procedure. Litigation generally adheres to the principle of "procedure precedes entity", and analyzes the jurisdiction, limitation of action and eligibility of the parties to avoid the loss of time and cost caused by procedural errors. The fourth part is the focus, according to the litigation request, clear retrieval proposition.
The retrieval rules and case tables are aimed at retrieval propositions, retrieval rules and similar cases, in which the types of rules are divided into (1) rules; (2) Legislative interpretation; (3) Administrative regulations; (four) the judicial interpretation and the reply, notice and meeting minutes issued by the Supreme People's Court; (5) departmental rules and regulations; (6) local regulations; (seven) normative documents formulated by the local government or its departments; (8) Other relevant normative documents. The case type adopts the form of "trial period+trial level". If the Supreme People's Court's guiding cases and announcement cases are collectively referred to as "Supreme Court Guiding Cases", such as the retrial of Hebei High Court and the first trial of Handan Intermediate People's Court, it is best to attach printed judgment documents (the text of China Judgment Documents Network).
The retrieval analysis conclusion table is to analyze and summarize the claims of this case step by step according to the retrieved rules and similar cases, and finally draw the retrieval conclusion.
(4) Search report
The retrieval report is the final presentation form of our retrieval results. When making a retrieval report, we should first make clear the object of our service and think about retrieval from the other side's point of view.