A Research On The Rationality Standards Of Judicial Reason In Contemporary China

Including conclusion, the paper is divided into six parts.In chapter one, I explains the reason why I select this topic and the purpose of this thesis, establishes the research frame and basic category. On this basis, the question in chapter two is about the necessity of the judicial reason. The first section is a question to the existence of the judicial reason in theory. This section is about legal realism."Rule-uncertain"and"fact-uncertain"are the legal realism theories, the result is uncertain because the judge adjudicates are influenced by they individual character and even prejudice. Rule uncertainty and fact uncertainty are caused by the uncertainty of value and common understanding in legal field, so the judicial reason is only a mirage of the judicial justice. After combing above theory views, as the criticism to mechanical jurisprudence, legal realism have uncovered an important problem: The function of formal logic in judicial reason is limited, because really determine are the factors, such as intuition, value and common understanding to the result of the case, which can not be constructed and expressed again through the logic system, so can not be proved. Therefore, they think judicial reason is false. But this paper believes the judicial reason has necessary, so in section two, I try to proving from two respects. One respect is divided to two angles: Inevitability of the existence and the function. The Inevitability of the existence means that there must been judicial reason if there was the judicial decision in history. The judicial reason is why the judicial decision has authoritative. There are four kinds of authoritative types judicial reason existed in history, from God to the judges and to legal norms and to ethic norms. And it is described from two respects that the function is essential, first is the judicial reason remedies the rigidly of the code, promotes the development; and the second is bind the discretion which judges have.The question in chapter three is the rationality standards for the judicial reason. Chapter one proved the necessity of the judicial reason, then, this chapter pays close attention to the question that how to prove is rational. This is the key issue in contemporary legal argument theory, and tries to offering a bit resource to Chinese judicial reform at the same time. Investigate the changes of the rationality standard in the society ruled by law in section one of this chapter. From tradition ruled by law to modern ruled by law, the cognitive to judicial reason rationality standard is changing. Tradition ruled by law is formal ruled by law, that preserves the rules are clear, confirm and unanimous, so the rationality standard is the formal standard, including the formal legal logic and the formal legal interpretation. Turn to the modern ruled by law, practice has proved that form rationality has limitation in proving, the rationality standard begins to turn to the substance. Since cognition about the rationality standard to judicial reason always changes, so is there any standard which can be generalized exists and can be learned? The section two launches three kinds of routes from logic, rhetoric and discourse. There are two dimensions: First in the essence dimension, the argument must be acceptable. For the fact is everyone known or already been proved, the legal rules are effective or the legal interpretation is acceptable. Second in the form dimension, the legal argument must be logical. 1. In the logic, various kinds of logic systems are used in reconstructing different kinds of arguments. Syllogistic logic, propositional logic and predicate logic can reconstruct"monologue type", analysis whether state is true or not; deontic logic can reconstruct"discourse type"which analysis whether value in the state is correct or not. 2. In the rhetoric, the rhetoric remedy logic defect that absorb in form respect more than essence respect. The rhetoric emphasize"field dependent"which influence the state acceptability, how the judges use some point which has far and wide accepted to prove judicial decisions and how the judges use argument tactics to persuade audience and then to gain the agreement of audience. 3. In the discourse, the rationality is according with the form standard of acceptability and essence standard that the rationality.The question in chapter four is about the realistic predicament of the judicial reason in contemporary China. After the investigation of the general rationality standard of the judicial reason, the text gets back to the scene of the judicial reform in contemporary China, and analysis the predicament that the judicial reason has in the judicial practice. This text holds that there are two aspects of misunderstanding exist in contemporary China's judicial practice, so the chapter can be divided into two sections. Section one described three kinds of misunderstanding to the judicial reason in judicial circle. These three kinds of misunderstanding include equating the judicial reason with media and people's suggestion, judge's personal will and the reason that offered by the judicial party. Then the text analyses the reason which produced these misunderstandings. Section two is the misunderstanding of the judicial reason's function. This paper criticizes the view that most key function of the judicial reason is to make the judgments have acceptability, and then guarantee the legitimacy function of the judgments. Make the judicial parties be satisfied and accept the judgment. However, the judgment is to get up because of dispute, and it is unable to protect all parties' interests. Under this premise, how to understand the function of judicial reason then becomes a question. Proceeding from this question, the section analyses that the misunderstanding to the acceptability function of the judgment in the judicial practice of our country, then caused the influence of marginalization of the judicial reason. And the text analyses the predicament of judicial reason in the nowadays judicial practice in a profound level.The question in chapter five is to draw the research angle back to the justice reform in the judicial reason of our country, including scientization of judicial reason, standardization of judicial reason and population of judicial reason, then the text research on the realistic guarantee of the reform in judicial reason. In my opinion, the difficulty for reform of the judicial reason in nowadays China is due to the lacking of driving force and encouragement in essence. To change this current situation, we should carry on the reform from the ideal and realistic guarantee. On the value aspect, it is normal that the external value of judgment is to ensure the unblocked environment for the country's political and economy. This can not be criticized too much. But besides the functions of the politics and economy, there is its standard and inherent value in the judgment reason, namely the value governed by law. And the judicial reason should realize the plural socialist values governed by law, such as democracy, freedom, equality, reason, human rights, efficiency and legitimacy, but also makes these plural value inherent in harmony. Scientization of judicial reason is not only about the scientific values, but also with the objective vnueal of the logic, of the rule by law, and of the economic. Standardization of judicial reason request for four situations, including standardization of format, standardization of language, discourse and rhetoric of normalization and standardization of legal rules. Population of judicial reason is including population of the contexts and value judgments. In the aspect of the ensuring system, the ensuring system of the judicial reason should include three respects. First, defining that the explanation subject of the judicial reason is the judge's responsibility, and implying this responsibility through the effective rewards and punishments mechanism; Second, setting up the scientific mechanism of rating and checking inside the court, and making the judicial reason obtain the real position in this mechanism; Third, setting up external democratic mechanism of testing and assessing, and guaranteeing the validity of the external supervision to the judicial reason reform.