Study On Environmental Factors Of The Impact Litigation

For the past few years, along with the appearance of impact litigations such as Xu Ting Case, Deng Yujiao Case, Yao Jiaxin Case, Li Changkui Case, the judicial and public opinion are increasingly interrelated, even arisen the “public opinion trial”, this phenomenon has caused wide public concern in the legal research. Obviously, there is a conflict between the “public opinion trial” and the fundamental philosophy of judicial independence under the modem rule of law. Whereas, in the competition of court trial and public opinion demands, it will cover the interactive relationship between the judicial, public opinion and politics that curtly asserting the public opinion “kidnapped” the judicial. The more important question is confronted the difficulty of modern judicial which behind the tensions between the judicial and the public opinion. On the one hand, the consistency of judicial system would be maintained, on the other hand, we have to consider of those outside legal factors such as the public wishes. Nevertheless, this is the very question which cannot be explanation and demonstration by the modern rule of law which containing an internal perspective. Based on this statement, this thesis will be from an external perspective, leading into Luhmann’s system theory, and put it in the analytic model of impact litigation research. The external force that effected impact litigation could be summarized as common people, medium and politicians. On the basis of research on how environmental factors affect the impact litigation, there will be normative discussions further.System theory provided a kind of relation perspective, which let us recognize that it is not a single factor influenced the judicial operation, there are multiple factors playing a role. Although the Court has a final legal decision with institutional strengths in the Justice Field, at the same time, other subjects in their own interests never give up to fight for the legal right to decide. The transformational changes in Chinese society, way of thinking and cultural characteristics of justice, precisely to provide the conditions and possibility for such competition. If interests of parties determine their position and course of action in the Field of Justice, the conflict of interests and capital determine the content and consequences of their actions. In the impact litigations, environmental factors play a role in two phases: the first stage is conventional cases transform into impact litigations; the second stage is to fight for the legal right to decide in the Justice Field. Public and the media play a decisive role in the first stage, but in the second stage which is very important to the judicial decision, politicians tend to play a more vital role. This effect model could be summarized as: the public or the media influence the politicians’ attitude, and the attitude of politicians affects the judicial decision.To deal with whether environmental factors should be applied to the impact litigation, this thesis first investigate the negative effects which caused by environmental factors. By identifying theses negative effects which threat judicial basic values, it allows us to define more clearly the limit of environmental factors effect on the judicial system. In order to eliminate the negative impact on the judicial authority by the public opinion, justice should attract public opinion through more institutionalized way. In order to eliminate the adverse effects on the judicial independence by politicians, it needs to play the public’s role of checks and balances for politicians. However, the questioning did not end there. In the judicial system, how to play the public’s role of checks and balances for the politicians, and how to attract public opinion through institutionalized way, which relate to the question how to deal with the judicial system to run a closed and open relationships. To make sure the judicial system is closed, on the one hand it needs to strengthen research on irregular factors which constraint the justice such as self-interest motives of judges, judicial bureaucratic, etc, on the other hand it needs to practice path for normative expectations of people such as public justice, judicial reasoning and educational guidance. In order to ensure the openness of the judicial system, it needs to reconstruct the reasoning path of judicial democracy. The focus turned to the balance of powers from the legitimacy of the power source, which also determined its two major faces: first, to explore the real demands of public opinion and establish the appropriate system security; second, to define the reasonable boundaries of judicial democracy.