Study On Judicial Rules

What is the criterion of deciding how to deal with disputed problem in a case? The common answer is: legal provision. Because "taking the law as the criterion for judgment" is well known to everyone at present, and just like weighing by balance and measuring by rule, taking the law as the criterion for judgment has been a self-evident truth for judges. However, judicial practice has told us that it is not that simple. In some cases, it is very common that judges are puzzled about deciding some cases according to law. On one hand, judges should take the law as the criterion for judgment; on the other hand, sometimes judges couldn't follow law due to the uncertainty and imperfection of law or find no law to follow at all. This puzzlement makes it hard for judges to sentence or argue. Even the same case has different court decisions which will directly affect the following individual trial. The accumulation of puzzlement resulting from individual cases certainly will lead to the conflict of the principles of taking the law as the criterion for judgment, even will lead to the doubt of "rule of law". Then, how to resolve the puzzlement? Perfecting legislation as a countermeasure will occur firstly in the mind of most people. Since we have known that the puzzlement that leading judges not to take the law as the criterion for judgment directly owing to the uncertainty and imperfection of law, eliminating the uncertainty and imperfection of law is the best way to solve the puzzlement. However, the history and reality have proved that this is only an ideal path. But it is a dead end because the legislative capacity of human beings can never be complete enough to provide each case ready-made, clear judging standards. So are there any other countermeasures to resolve the puzzlement? The judicial rules theory talked in this dissertation may provide some inspiration and help to solve this problem.The above-mentioned is the main content of the introduction. This part introduces the motivation and reason to choose this subject through the argument about the puzzlement.Then, what are the judicial rules? In Chapter One the author mainly discusses this problem from the aspects of definition, representation, logical structure and basic features of judicial rules. The so-called judicial rules refer to the rules of deciding how to deal with controversial issues in a case, namely, judicial standards, or the major premise of the conclusions. From the origins of the rules, judicial rules can be divided into two rules in the narrow sense and in the broad sense. Judicial rules in the narrow sense refer to positive law rules, which have the synonymous concept with legal rules. Judicial rules in the broad sense not only include the positive law rules provided by legislators but also sentence rules provided by non-legislators. The rules in this dissertation refer to the concept in the broad sense. From the application of rules to different cases, judicial rules can be divided into the following types: rules of civil cases, criminal cases, and administrative cases. From the nature of the problem dealt with, judicial rules can be divided into the two categories: substantive rules and procedural rules. In different contexts, judicial rules have different representation. For example, out of court, judicial rules refer to legal provisions in positive law; in court, judicial rules refer to the criterion for judges to deal with disputed problems; in judges' thoughts, judicial rules refer to the major premise of the conclusions; in judicial documents, judicial rules refer to the reasons to judge. Judicial rules belong to conditional proposition, which composes of general factual preconditions and general legal consequences, and whose logical structure can be described as "If T, then R." Compared with legal rules, main features of judicial rules are as follows: the exclusive attributes in the field of application, the complexity of subject establishment, and the pertinence of the applied objects.From the above contents, we can see that judicial criterion is the rules implied in the legal provisions rather than the legal provision itself. Legal provision is only the beginning for the formation of judicial rules, and judicial rules are not lying on the statute laws waiting for a judge to use. Then, how the judges acquire judicial rules to deal with disputed problems? In Chapter Two, the author gives the answer by discussing the constructive methods of judicial rules. The constructive methods mainly include the following three methods: legal discovery, legal interpretation, and legal supplement. Legal discovery is a kind of legal method that judges search and find corresponding judicial rules from positive laws after the controversial problems are clear. This method is the first one for judges to construct the judicial rules of cases, which are mainly applied to relatively simple and routine cases. However, in trial practice, judges sometimes have to face another type of cases: they can find the corresponding legal provision in positive laws dealing with disputed problems in the case, but there are different meanings among these articles due to the ambiguity of law provisions. Clients or judges may have different understanding, and which will lead to different judicial rules. Obviously, for this type of cases, the judge handling the case can not establish judicial rules of controversial issues through the legal discovery method alone. At this point, the judge needs to resort to the second method of constructing judicial rules, namely legal interpretation. The so-called legal interpretation refers to the legal method that judges clarify the meaning of involved legal provisions in order to establish the judicial rule of disputed problems in a case. This legal method includes more than ten subdivided methods, such as literal interpretation, context interpretation, historical interpretation, and so on. In this dissertation, the author discusses legal interpretation as the constructive method of judicial rules by taking literal interpretation, context interpretation, historical interpretation, teleological interpretation and constitutional interpretation as examples. In judicial practice, sometimes judges have to face the third type of cases: positive laws provide the case neither clear judicial rules, nor ambiguous judicial rules. That is, the case encounters legal loophole. Obviously, for this type of cases, legal discovery and legal interpretation are incapable to help judges establish the legal methods to deal with the judicial rules of disputed problems. Then the third method legal supplement will present itself. The so-called legal supplement refers to the legal method that judges establish the judicial rules of disputed problems in a case through employing analogy and custom. In the second chapter, the constructive problems of judicial rules are discussed from several aspects: the relations among the above three legal methods and judicial rules, the justification of these three legal methods from the justice of the perspective of judicial rules, and the concrete application of these three legal methods in the construction of individual case judicial rules. So this part can also be considered as the argumentation of judicial rules from the aspect of operation.Judges will definitely have weaknesses of ordinary people, because they are human beings but not spirits. The behaviors to construct judicial rules are possible to have the situations of dissimilation, such as deliberate misinterpretation of law or non-deliberate misinterpretation of law. Then how to prevent dissimilation situations? In chapter Three, the author further discusses the construction of judicial rules from the aspect of the principle to prevent the dissimilation of the constructive behaviors. Judges should adhere to the principles of openness and restrain when they construct judicial rules. The so-called principle of openness refers to that judges should open the contents and constructive methods of judicial rules through documents or other forms. The principle of openness is an inherent requirement of procedural justice, which not only helps to prevent the judges through the black case work to distort the law for the benefit of relatives or friends, but also helps to summarize and spread trial experiences. The so-called restraint principle is that while constructing the judicial rules, judges should take the advantage of the concept of passive and active justice, abandon the weaknesses of the two, and balance the two under the premise of safeguarding the authority of positive law, that is, judges will stick to the concept of restraint justice.The theory of judicial rule is practical? Or is it just a mystery? After understanding the signification and constructive methods of judicial rules, the value of the judicial rules naturally becomes another main problem we care. In Chapter Four, the author primarily makes a discussion on the possible academic value of judicial rules, mainly taking the aim and sorting order of legal interpretation as an example, which has long been argued in academic field. The aim of the application of legal interpretation methods (including the methods of legal discovery and legal supplement) for judges is to deal with the judicial rules of disputed cases, rather than the subjective meanings of legislators, or the objective meanings of law itself. From the aspect of the theory of judicial rules, the so-called subjective theory or objective theory is not the aim, but the different means or approaches of acquiring the judicial rules. The judges take the aim of legal interpretation as the judicial rules of disputed cases which can take the advantage of subjective approach and objective approach, and can discard the demerits of both approaches, but also can prevent unnecessary confusion of judges when they weigh. If looking the sorting order of legal interpretation from the perspective of the theory of judicial rules, the disputation of the problem can be relieved. In the theory of judicial rules, the judicial rules for individual cases are the common aims of the application of all kinds of legal interpretation methods. During the process of arguing the validity and rationality of judicial rules, these specific legal interpretation methods have different divisions in functions and dynamic connection with each other. The requirement for the validity and rationality of judicial rules has decided that judges can not arbitrarily choose one certain interpretation method but give up another.What is the practical value of the theory of judicial rules? In Chapter Five, the author discusses the practical value of the theory by taking judicial documents, judicial precedents and other legal practices as examples. For the writing of judicial documents in our country, the theory of judicial rules will help clarify the content and the reasoning method of judicial documents, strength the logicality of judicial documents, and clarify the evaluation criterion of reasoning in judicial documents. For the judicial precedents, the theory of judicial rules will not only help the understanding of the orientation of function, formulation, applying conditions, and effectiveness, but also help the understanding of the necessity and possibility of establishing the precedent system in our country. The judicial rules provide us some inspiration on why we set up the precedent system, what precedent system we should establish, and how the judges will apply in the future. Whether the theory of judicial rules is helpful to resolve the puzzlement of judges when they sentence according to law? In Chapter Six, in response to the questions raised in the introduction, the author further discusses the practical value of the theory, and also makes summary on the contents of the dissertation. In this part, the author respectively sums up three fundamental points of the theory of judicial rules surrounding the resolving of the puzzlement. The first point is to take judicial rules as the criterion to resolve the puzzlement of sentencing according to law from the aspect of criterion. The second point is to establish judicial rules to resolve the puzzlement of sentencing according to law from the aspect of method. The third point is to explain the principle of sentencing according to law from the perspective of three-dimension to resolve the puzzlement from aspect of the concept. The so-called three-dimensional interpretation concept means that discarding the one-dimensional sentencing concept (only from the aspect of positive law to understand the principle of taking law as the criterion) and the two-dimensional interpretation sentencing concept (to understand the principle of taking law as the criterion from both the positive law and procedural law), in order to build up the three-dimensional sentencing concept (to understand the principle of taking law as the criterion from positive law, procedural law and legal methods.) The dynamic combination of above three fundamental viewpoints is helpful to resolve the puzzlement of judges, and is also helpful to the effective implementation of the principle of taking law as the criterion.Finally, the author clarifies the weaknesses of this paper, and also points out the direction for future effort.