浙江工商大学学报

案例指导制度是我国司法改革的核心内容，是成文法体系下的重要制度创新。最高人民法院赋予指导性案例以“应当参照”的效力，但是实践中对于其效力指向存在诸多争议。一种观点主张法律效力论，将指导性案例作为正式法源，这过度提升了其地位，由此会带来不少风险和难题。另一种观点倡导事实约束力，有效避开了法律效力论遭遇的批判，而一度跻身学界主流立场。事实约束力缺乏足够制度支撑，导致它极易沦为一种可有可无的弱影响力。为此要兼顾规范与事实两个层面，重塑指导性案例的效力性质。通过区分效力法源与认知法源，将指导性案例定位为一种内容取向的认知法源，分情况将其作为裁判理由或裁判根据使用。秉持一种正确的同案同判观，允许法官在符合条件的情况下背离指导性案例，为此只需承担相应的论证责任。

The case guidance system is the core content of China's judicial reform' and is an important institutional innovation under the statutory law system. The Supreme People's Court has given guiding cases the effect of “ should be followed”' but in practice there are many controversies over the direction of their effect. One viewpoint advocates the theory of legal effect' treating guiding cases as a formal source of law' which excessively elevates their status and brings with it many risks and difficulties. Another viewpoint advocates factual binding force' effectively avoiding the criticism of legal effect theory'and once entered the mainstream position in academia. Factual binding force due to the lack of sufficient institutional support'resulting in it is very easy to be reduced to a dispensable weak influence. For this reason' it is necessary to take into account the two levels of norms and facts' to reshape the nature of the effectiveness of the guiding cases. By distinguishing between effective legal sources and cognitive legal sources' guiding cases are positioned as a content-oriented cognitive legal source' which is used as a reason or basis for judgment depending on the situation. We should adhere to a correct view of “the similar case be treated similarly”. Judges are permitted to depart from the guiding cases when they meet the conditions' and are only required to bear the corresponding burden of argumentation for doing so.