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实践中,上级法院对下级法院做出的一些指导性意见经常前后矛盾,因而两者中必有一种是不当甚至错误的。而且同个案错误不同,指导错误会使所有的裁判全都错误。且因为指导意见性质上是一种权力体现,必会妨害不同观点的自由交锋,也就无法保证它的正确性。从而,有了这种指导反倒更会发生错误,并与司法权性质不符。况且,这种指导关系是不当实践的结果,而不是法定的,也就没有理由对其秉持而不按司法权要求来建立合理的审级关系。
In practice, some of the guiding opinions made by the higher courts to the lower courts often contradict each other. Therefore, one of the two must be improper or even wrong. And with a different case of error, the wrong guidance will make all the referee all wrong. And because the guidance is a manifestation of power in nature, it is bound to hinder the freedom of confrontation between different points of view, it can not be guaranteed its correctness. As a result, mistakes can occur even with this guidance, which is inconsistent with the nature of judicial power. Moreover, this kind of guiding relationship is the result of improper practice, rather than statutory, and there is no reason to establish a reasonable level of censorship for the purpose of upholding it instead of the judicial power.