On Judicial Judgment

This essay is divided to two parts of the preface and text. The part of introduction explains in brief the genesis of this topic and defines the study scope and expatiates the basic train of thought, main foundation and sense of theory and practice. The author explains that we should take the judicial rationality as the basic point of study and take that how to carry through the judicial rationality in judgment thought and judgment method as the lodging. Enclosing the goal, the text is divided to five chapters. The basic thought of section's design is to analyze the characteristic of judicial judgment and it's in face of problem, put forward the basic content of judicial rationality according to the requisite of the present age of China at first and study the realized approach of judicial rationality in judicial thought and method again.The chapter one is to analyze and explain the meaning of judicial judgment. The author researches the main meaning, object and practical movement course of judicial judgment from the angle of semantic analysis and demonstration analysis. Firstly, the author puts forward the basic structure of subject, object, behavior and result of judicial judgment after defining the concept of judicial judgment and compares the judicial judgment decision with legislation decision and administration decision taking it as standard in order to define the scope of the later discussion. Secondly, the author analyzes the character and essential of the dissension as the object of judicial judgment and considers that sequence of social life is the basic of resolving the historic and realistic problem at leisure and realizing the scientific development. So, dissension exists as negative factor. Judicial judgment is not only established in resolving the dissension but also guarded on happening dissension. At the same time, aiming at the lesson in the practice of inside and outside the nation the author puts forward that the power of judicial judgment must maintain definite continence and can not bring all legal problem occurring in the social change era into judicial channel. Therefore, the author brings forward five restrict factors in confirming the scope of judicial judgment. Thirdly, the author analyzes the course of judicial judgment and considers that the ancient theory of judicial judgment course is completely established in the angle of judger and exists of the liability of simplification puts forward that the study to judicial course must consider the factors of party and legal form's structure. Hereby, the author describes three types of judicial course being in the judicial practice and opens out the job emphases of judger and the main problem needing to be answered in every course and disproves primarily the doubt to the definition of judicature.The chapter two is the study to model of judicial judgment. The author considers that the relation between judger and legal rule is the essential problem in the study of judicial judgment. The study angle of view of this chapter is to probe into the proper attitude which the judger treats the legal rule from the judicial judgment inside. In order to study conveniently, the author names the two extreme kinds of judgment model coming into being from the basis of legal formalism in west as the judgment model of law article and judge, analyzes the basic thought and value tropism of the two models, and discusses the historic background and factual movement effect of each other. This provides the basis of compare and reference for the model choice of judicial judgment in China. At the same time, after analyzing at large the status of judicial judgment in ancient China the author considers that it belongs to the judgment model of essentialism and is different from the above judgment model in west. But as an avoidless culture tradition, it has huge influence to our judicial judgment model. In the contemporary era of China, although the circs has occurred great change, but being enslaved in several kinds factor of history and reality, the judge all the same stray in the antinomy of law ideal and social reality, modern ideal and traditional modus operandi, government by rule and factual effect. It's behaves is that the judge strive to balance relation between the legal rule and other rule on the base of judicial judgment and conciliate the conflict between the formalism and essentialism on the liability of judicial judgment. Therefore, the author use for reference the legal type development theory of Weber and emphasize that we can not get across the formal rationality stage to pursue straightly the essential rationality in our country which lack formalism legal tradition. So, on the choice of judicial judgment model, we should take the judgment model of legal article as the main aspect and base and at the same time take the availability part in judgment model of judge as complementarities.The chapter three is the study of rationality factor in judicature. Owing to the judicial judgment being determined by the judge's independent consciousness, we must strengthen the self-discipline power in judge's heart depth namely judicial rationality besides restrict them with outside system. The author conclude the rationality's meaning from five aspects after analyzing the all sorts of rationality's concepts and expatiate emphatically the intension and four aspects basic content of judicial rationality according to the request of practical rationality. The author points out that the judicial rationality has different content with the development of society and the unification of"legal effect"and"social effect"should be taken as a basic judicial policy and compose the main tropism of judicial rationality in contemporary China. The author discusses emphatically the scale standard and realization approach of the unification of"legal effect"and"social effect"in this chapter's second half part.From chapter four the author takes the study to the area of judgment practice and discusses emphatically how to carry through the judicial rationality into concrete judgment. From the angle of judge's thought, the author puts out eight items rule of judgment thought aiming at the problem which current judicial judgment is facing and basing on the legal thought's intension and structure and the relationship between them and judicial thought. These rules include that steadiness is the attitude of judgment thought, the judicial inwit is the soul of judgment thought, the legal concept is the element of judgment thought, the current law is the foundation of judgment thought, the logic consequence is the form of judgment thought, the judgment fact is the base of judgment thought, the analysis of right and duty is the clue of judgment thought and the legal demonstration is the criterion to inspect judgment thought. The author also brings forward some suggestions to the idea and value selection which puzzle the judicial judgment.The chapter five studies the main methods applied in the course of judicial judgment. The author brings forward the character and sense of judgment method from four aspects basing on using for reference the theoretic production of judicial method and analyzes the relationship between judgment method and judgment thought. The author also points out that the ancient theory about legal method and judgment method ignore the key tache of fact cognizance according to the factual circs of our judicial practice. The author considers that because creating the judgment criterion and constructing judgment fact is the main problem of judicial judgment, so the methods to solve these two problems are the most important judgment methods. At the same time, all kinds of problems in judicial judgment appear gradually with the advance of judicial course and that these problems can be divided to fundamental and non-fundamental arrangement. So, the intervention and use of judicial method have specific gradation and order. The former explains the successive sequence of concrete judicial method's adoption. The later explains that we should adopt preferentially which method when there are more than two kinds of method. Basing on such cognition, the author emphatically researches the course and basic method of creating judgment criterion and constructing judgment fact in this chapter.