| By analyzing the current existing situation of judicature, you can find the civil and commercial legislation system of China has been initially established, subsequent to the successive promulgation of a series of important civil, commercial and IP laws like General Principle of Civil Law, Real Rights Law, Tort Law, Contract Law, Marriage Law, Law of Succession, Company Law, Negotiable Instruments Law, Insurance Law, Trademark Law, Patent Law, Copyright Law, etc. Thus, the civil codification is just around the corner. Under the circumstances, the prominent problems in judging the cases will be the issue of how to apply the civil and commercial laws by the Judges, instead of the issue of shortage of legal system, as for the issue of applying the civil and commercial laws, it involves in both the Judges'thinking mode of adjudication and the method of applying the laws. Both of them constitute the two indispensable parts of the mechanism of civil and commercial law application. Unfortunately, for more than 30 years since the Chinese judicial practice, among the Judges, no systematic theory cognition has been formed on this issue with great theoretical implication and practical values, which has led to the apposition of judge's adjudication thinking mode in the judicial practice level, and the maze in law application method and path.In this article, by summarizing the judicial practice in civil and commercial cases, abstracting and refining the legal theories, the author sums up three mal-positioned thinking modes of adjudication, i.e. the type of mechanical adjudication, the type of intuitive adjudication, the type of legislation. By analyzing the formation, characters and thinking mechanism of the abovementioned three types of adjudication thinking modes, rethinking the judgment results, and based on the precedents analysis, applying the thinking mode of generating the proper judgment result, analyzing the reasoning and reasonably abstracting, the author proposes that in the adjudication process of the civil and commercial cases, the judge's value on adjudication thinking mode should be "the law application on case adjudication should be based on the civil and commercial law resources, taking the law interpretation as the measure, to seek for the appropriate judgment result well balanced with legal effect and social effect". This should be the thinking mode hold by the judge when judging the civil and commercial cases, i.e. the due adjudication thinking mode hold by the judge.For the type of mechanical adjudication, it sticks to the literal contents of the civil and commercial regulations, ignores or isolates the inner relations between the law application and the social ethics, justice and interest leverage, overlooks the practical trait of law. Under the circumstances of the inherent conflicts and the obvious improper interest balance between the reasoning adjudication result and the social justice, ethics, it views the controversial conflict as the obvious result, treats the law itself as the purpose, and ignores the considerations on the interest and legal regulation on the specific cases.The characteristics of the mechanical adjudication type of judgment thinking mode are:(a) taking the civil and commercial statutes as the judgment basis, and overlooking the state policy, custom and legal jurisprudence. When judging the case, it will be reluctant to fully implement the way or method of the legal interpretation to interpret and apply the applicable law, or reluctant to implement the method of interest balance to seek for appropriate legal basis from the inner legal resources. (b) It will be limited in the literal content of the civil and commercial statutes, paying more attention to the formal logic thinking, mechanically implementing the law articles, ignoring the practical social traits of the laws.In the judicial practice, the mechanical type of adjudication thinking mode can be further divided into two:clearly provided by the law, without any law or regulation. For the former one, it can be further clarified as four situations:the first one is for the case related dispute, there is applicable articles in the law, however, due to the judge does not locate the articles and judge the case in the mechanical judicature judgment thinking; the second one is there is applicable articles in the law for the case related dispute, however, the judge think it is not applicable to the case related dispute and then refuses to apply the articles; the third one is, for the case related dispute, though there is the existing law, however, it has not been apt to the social requirement, the judge mechanically apply it without any interpretation; the fourth one is the law is clear, the judge's law application is also correct, however, the judgment has no actual meaning or the judgment result will damage the interests of the parties not involved in the case. In the abovementioned different types or the different circumstances in the same type, mechanical type of adjudication judgment mode will perform differently.For the type of intuitive adjudication, it means the judgment of the case breaks away from the legal resources should be applied, and the judge adjudicates the case based on his/her own intuitive trend and the regulations which are obviously unrelated to the disputes, or the social justice, morals and ethics, the social conditions and public opinions. It is one of the behaviors of the judge's emotional adjudication, which usually represents as ignoring the legal effect, catering to the social effect, splitting the organic unity between legal effect and social effect. In essence, it does not believe in the law, doubts that the law can solve the social problems. It is a kind of reflection of legal nihilism in the judicial practice.The type of intuitive adjudication can be divided into two:the false law application, and the one directly taking the justice, ethics and morals, or social situation and citizen's opinion as the adjudication basis.The characteristics of the intuitive adjudication type of judgment thinking mode are: (a) the case judgment is obviously lack of legal basis or the applied legal basis is obviously inapplicable to the case related dispute, or directly taking the justice, social situation and citizen's opinions as the judgment basis, which is different from the situation of mechanically applying the articles of law without any purpose consideration of the law and regulation. (b) The judgment result is not necessarily inappropriate, which is also different from the mechanical adjudication of deviation from the social requirements. In the simple case, the judgment result of the intuition adjudication type of judgment thinking may be appropriate, but it performs as the "super discretion" of judging by the emotional tendency. (c) Usually the judgment result emphasizes on the pursuant of the social effect. The judge of the intuitive adjudication type of judgment thinking mode usually treasures the public opinion, reason and plain justice as the vital basis for enforcing the judgment, lacking of conscientious resisting the consensus, intuitively paying the attention to the consensus trend, taking relevant activities in consideration of the case situation which may influence the public opinion. This type of judgment thinking mode overlooks the law application, abandoning the effort to seek the judgment basis combined with the public opinion and the social main value trend from the existing legal resources, ignoring the law effect of the judgment result.For the type of legislation, it pursues to the perfection of legislation, advocates "legislation panaceas", and strongly criticizes the existing laws, trying to judging various civil and commercial cases by perfecting the legislation. It has ignored the fact of the independent existence of the civil and commercial law implication in the judicial practice as the adjudication skills, shielded the research and study on the civil and commercial law application. In essence, it has confused the role and function of the civil and commercial legislation, and the civil and commercial law application. In the case judgment process, this type of legislation will be performed as:for the civil and commercial disputes to be judged, the judge will not try his/her best to solve the disputes from the legal resources, instead, he/she will take the involved disputes as the example of criticism on the current legislation, and then take it as the imperfection of the current civil and commercial legislation for proposing the revision or supplementary the existing laws, with the purpose of the perfection of the legislation. When judging the cases for the judges holding this kind of adjudication thinking mode, they will have for choices as follows:firstly, when thinking that deficiency of legislation apply for the disputed case related law and regulation, before the perfection of the legislation, they will refuse to protect the case related interests. Due to the lack of correspondence between the judgment result and the social requirement, it is quite easy to fall into the lair of the mechanical adjudication. Secondly, when there is the applicable law and regulations, and it is obviously unfair if the applicable law and regulation are applied, the judge may still keep on the excuse of "law is law even if it is devil", and uses the unperfected law and regulation, under the circumstance of the disappointed legislation, which will lead to the path of the mechanical adjudication. Possibly, the judge may also honor "the evil law is not law", express the resistance on the current law and regulations, and furthermore, deny and abandon the law and regulation, and directly take the justice, moral and so-called social condition and civil opinions as the basis of judgment with the purpose of catering the social effects, which leads to the trap of departing from the intuitive adjudication. Thirdly, when there are the applicable laws, and the application of the existing law and regulation will not be obviously opposing to the justice and morals, though the judge will be unsatisfactory with the existing law and regulations, he or she will be still applying them to solve the disputes. However, this kind of application is purely the passive application; it is a kind of application from the perspective of legislation, instead of the active application. Fourthly, when thinking that the existing law and regulation is unclear or has leakage, before the perfection of the legislation, the judge will not interpret the existing law, and directly apply the basic principle to judge the case, which may ignore the applicable law and regulation, and the value of the legal system will be biased.The three types of mal-positioned thinking modes of adjudication broadly exist in the judicial level, it either mechanically understands the current existing law, distorts the law sprit, or ignores the existence of the current law, and denies the law value, or challenges and criticizes the existing law, advocates "legislation is all", overlooks the value of the law application. The value of this case adjudication thinking has affected the development and the proper implementation of legal functions of the civil and commercial laws, deceased the judicial authority, and hindered the formation of the belief in law. To seek for the appropriate judgment result for the civil and commercial cases, and enhance the judge's inner peace, the adjudication thinking mode taking the value of "the law application on case adjudication should be based on the civil and commercial law resources, taking the law interpretation as the measure, to seek for the appropriate judgment result well balanced with legal effect and social effect" should be the due adjudication thinking mode hold by the civil and commercial judge, i.e. the due adjudication mode hold by the judge.For the due adjudication thinking mode, it believes in the current existing civil and commercial law without any suspension or seldom criticism. It means the law application of the case adjudication is based on the legal resources and measured by the legal interpretation, bestowing of the firmly believe-in, pursuing to the unified proper judgment result between the legal effect and the social effect. This type thinking mode of adjudication never doubts and seldom criticizes on the existing laws; it holds the view of "the legislation can be not perfect; however, the law application should be perfect". It recognizes the state policies, customs and legal theories as the applicable legal resources, and objects to the intuitive adjudication seeking for basis outside of the case. In the situation that the regulation is unclear and there is loophole, it holds that the judge should interpret the law and regulation by value supplementation or filling the loophole, instead of the mechanical adjudication by bluntly applying the law and regulation and the consideration of lack of purpose. In essence, it is the practical utilization of the law application method during the case judgment of the modern legal dogmatic.This thinking mode also holds that the legal interpretation is the bridge connecting legal effect and the social effect during the case judgment process. The two effects are the two sides of the one body; legal effect is the performance of the legal function through the law applied by the judge, while the social effect is based on the feeling of the law application in the social life level. These two effects are consistent, instead of resistance. The reason while the mechanical adjudication is mechanical is because it denies the application of the legal interpretation, splits the inner connection between the legal effect and the social effect. The reason why the intuitive adjudication is too reckless is because it abandons the law application, let alone the legal interpretation, which causes the lack of legal effect in the case judgment. As long as the judge applies the proper law in the civil and commercial cases, the good social effect will be achieved. For all the bad social effect, to the great extent, is due the judge does not understand the substantial annotation of the law and regulation, and does not apply the basic system, basic principle and fundamental theory in the judicial practice, which causes the deviation of the so-called "social effect" and the "legal effect". If the judge strictly adheres to the legal facts, law and regulations and legal system, combined with the legal interpretation when necessary, to determine the legal relations involved in the case, and then conducts the logical reasoning, the result will be occurring the high match between the judgment and the social condition and public opinions. It also can feel the "natural beauty" produced during the process of legislation, judicature.The due adjudication thinking mode is a kind of judgment thinking idea lies in the judge's heart. It is the direction of seeking for the appropriate case judgment result. The process of law application by the judge is the process of seeking for the appropriate judgment result. Thus, when judge applying the law, he/she should choose the proper ones in the possible judgment result by using "comprehensive analysis method for a body in all directions", which can be confirmed by the judge is his/her heart. As both the specification of the believe-in law adjudication thinking mode in the case judgment, and the direction method of seeking for the proper law application and the appropriate case judgment result, it is the bridge of the two.As for "comprehensive analysis method for a body in all directions", it includes:the comparison of the possible judgment results with the basic legal theory close to the case related legal relations based on the involved legal relations and the case facts, to see whether the judgment result is contrary to or adhere to the related basic legal theory, to view whether the judgment result can make the interests of all the parties'involved in the legal relations be balanced by putting the possible judgment results in the case-related legal relations; in the relevant provisions of the case related legal relations, to consider whether the judgment result integrates the intent of the legal provisions, and matches the current legal system; for the possible judgment results, Estimate whether the judgments are consistent with social values including fairness and justice principles. Predict the influence of the judgments on the values of human society. It means to inspect decrees will encourage or restrain peoples correct behavior. And to examine adjudications will incite or ban people to act in unlawful or dishonest ways. After the analysis from four perspectives, the judge considers the analyzed results comprehensively, and finally determines the case judgment result. In short, "comprehensive analysis method for a body in all directions" means during the case judgment process, the judge will profoundly analyze, compare the possible judgment results from four perspectives like the legal theory, the interest balance, the law and regulation and the value guidance, then summarizes it, and finally determine the method of the law application for the case judgment result.He introduction part, this article includes four chapters:In Chapter one, the author analyzes the mal-positioned thinking mode of judges' adjudication based on precedents by abstracting, summarizing the concepts, connotation, traits, types and judgment results of the three types of thinking modes of the adjudication, and the specific performance in the judicial practice, and then searching for the reasons from the history and the basis of the legal theory.In Chapter two, after summarizing the thinking mode of mal-positioned judicature, the author takes precedents as the entry point, summarizing and refining the concept, trait, thinking operation mechanism of the thinking mode of believe-in judicature, further probes the promotion of the thinking mode and the significance and meaning to the judicial practice. The author proposes in the adjudication for civil and commercial cases, the judge's due value for the adjudication thinking mode should be "the law application on case adjudication should be based on the civil and commercial law resources, taking the law interpretation as the measure, to seek for the appropriate judgment result well balanced with legal effect and social effect". This should be the thinking mode hold by the judge when judging the civil and commercial cases, i.e. the due adjudication thinking mode hold by the judge. Subsequently, the author combs the historical development of legal dogmatic and demonstrates the evolution and development of legal dogmatic, which reveals the thinking mode of believe-in judicature in nature is the application and development of the law application methodology for the modern dogmatic in the judicial practice.In Chapter three, based on the probe of the due thinking mode, the author further discusses the specific path of civil and commercial law application, i.e. probing the specific path for the appropriate judgment for the civil and commercial cases, creatively points out "The Quad-Aspects-One-Unity Integrated Analysis Methods" for judge to apply the law. According o this method of law application, the judge can conclude with the judgment result which can makes his/her heart dependable. Then the author analyzes the thinking mechanism of "The Quad-Aspects-One-Unity Integrated Analysis Methods". And further, the author analyzes the influence on the case judgment caused by the levels of the "The Quad-Aspects-One-Unity Integrated Analysis Methods". Based on this, the author concludes that if all or neither or part of the levels of the judgments result for the cases adheres to the "Quad-Aspects ", the judge's due choice for the judgment result.In Chapter four, it states the specific application for the mechanism of civil and commercial law application. In the thinking mode of believe-in law judicature, the author thoroughly analyzes two cases published in Supreme People's Court gazette by utilizing "The Quad-Aspects-One-Unity Integrated Analysis Methods", and demonstrates the improper and flaws in the judgment results of the two cases. |
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