| From May 1985 to May 2014, the Supreme Court of People's Republic of China (the Supreme Court) published documents and cases of more than 7000 civil judgments, most of which were delivered by the Supreme Court himself. This is a vast treasure of judicial sources with increasing size as time goes by. It is incumbent upon as well as a glory of the academic to make further and continuous efforts to study on and go deep into those court judgments by summarizing the methodology of court decisions, clarifying the rationale for the law and indentifying the direction of the development, which will bring direct and long-lasting benefit to the legal practice.This article set out that in order to nurture the theory with practice while to command the practice with theory in the Age of Big Data with seemingly infinite judicial sources, it is, first of all, necessary to have an revolution on the current study method, which is an important standard to the quality of case study and the only path to enhance the case study level.The current general study methods, either analytical method to collection of cases of practical tendency, or analytical method to legal relationship of theoretical tendency, or systematical method of petition basis, are products of the time where few cases are published. Such methods are corresponding to case by case study which tend to deduce the special from the general or the general from the special with deep and precise analysis as its advantage. However, with the impact of the popularity of information technology in the judicial area, those traditional methods are adequate to resolve particular issues but inadequate to review the whole scenario. What's worse, if the predicament caused by the inadequacy of the traditional methods lasts, it will eventually offset the whole value of those methods. Hegel said, "Only the whole is true." Taiqing Wang, philosopher of China, further elaborates that, the true is only the whole, not fragments. This is what the philosophy says, so is the law. As such, the crises of case study are caused by the methods of study. The purpose of this article is to bring up the issue and tackle with it.Due to the crises of traditional study method, the author is compelled to do the research from a totally new perspective. The author abstracts the four elements structural analytical method from an aspect of epistemology on basis of the system of civil law basic theory and the four elements, "entities, actions, rights and responsibilities". In this method the author categorizes multiply all the published cases of the Supreme Court by the four elements in a novel manner according to the epistemology of generality (theory) to generality (practice), which enable us to identify the clear direction of the seemingly infinite case study and regain confidence of the theory and resolve the aforesaid issue to a large extent. More importantly, it helps sort out the development path of the historical civil judgment of the Supreme Court in principle with the abstracts of all the cases and proves the "Goldbach Conjecture" held by the author for a long time, that is:there is some preliminary methodology of the Supreme Court in civil judgment, but such methodology is still developing, and the development direction is not certain yet. Hence, the key issue of this article is:the four elements structure, which express the methodology of the civil law theory, is not only the primary clue that goes through all the civil judgments of the Supreme Court, but also the primary key to the law of the civil judgments of the Supreme Court.As the key issue apparently consists of two connected sub-issues, the author presents this article with two spiral clues circulating the key issue:on the one hand, the author tries to prove whether or not and how the four elements structure dominates the area. On the other hand, the author try to prove through empirical research whether or not there is methodology of the Supreme Court and how such methodology is formed. Firstly, this article begins with historical research experience and self-reflection from a perspective of methodology and tries to abstract the analytical framework of the four elements structure method on the basis of the civil law theory. Secondly, this article turns back to sorting out all the cases and takes advantages of the analytical framework as a standard to deduce the common resolution of the cases and establish four sub-systems, which are "defining civil legal entities", "judging legal actions", "protecting civil rights" and "allocating civil responsibilities".Thirdly, there are further segments of some judgment elements or types under every sub-systems, e.g. there is a further segment "the standard to scrutiny of proper entities" under the sub-systems "defining civil entities" and there is a further segment "main influential factors" under "judging legal actions".The whole scenario become more and more clear as the theoretical structure goes across artery level to capillary level after reclassification and integration of all the case elements, which evidences the dominate role of the theory over the practice. At the same time, those seemingly infinite chaotic cases become orderly and reveal its internal logic after they are summarized and sorted out in capillary level and go across artery level to the theoretical structure, which manifests that the theory derives from the practice. Eventually, it reaches the conclusion of this article as the theory and the practice are interacting to each other, united by the four elements structure and included in the overview of the methodology of the judgment of the Supreme Court.Empirical research in every chapter proves that, in the past three decades, the Supreme Court tend to be open-minded as well as disciplined in defining civil legal entity, to be flexible as well as uncertain in judging legal actions, to advocate absolute rights as well as rights with limitation in protecting civil rights, to emphases assumption as well as balance in allocating responsibilities. The author believes that, it is difficult to overview with confidence the whole scenario of civil judgments of the Supreme Court in a prolonged period if we don't take advantage of the four elements structure method theory consciously. The tortoise with tradition method cannot catch up with the judicial rabbit no matter how hard it has tries. It is even more difficult to look deeply into the elements of every segment of the methodology of the judge of the Supreme Court. One is still ignorant of the structure of the whole building now matter how carefully he studies on one brick.Compared with the current study results, this article is novel on the research method, i.e. to sort out and analyze all the civil cases of the Supreme Court in the past three decades with four elements structure and summarize the law of civil judgments thereon for the first time in the domestic academic. There are four characteristics of the study of this article:an extensive scope, a prolonged period, a novel method and a powerful theory. An extensive scope refers to the subject matter to study on including all the published civil judgments of the Supreme Court so far, leveraging the previous civil judgments classification study to the level of full-covered study. A prolonged period refers to the cases covered in the study were from May,1985 to May,2014, lasting for three decades. A novel method refers to that it breaks through the limitation of current method in theory and in practice and elaborates on the four elements structure as a new theoretical analysis framework which dominates all the civil judgments of the Supreme Court and goes through all major processes in court. A powerful theory refers to the great possibilities to be brought about by the interaction between the four elements structure and the Kaleidoscope-like judicial practice in the future as the four elements structure, which is founded in the theory of civil law and regarded as the expression of the methodology of the theory of civil law and the structure of the logic thinking of civil law, has strong reasoning power.Although the author has made his best endeavors, empirical research in this article is insufficient yet because of a large number of the cases, the demanding requirement on the author's knowledge and willpower by the novelty of the research method itself and the limitation of the author's knowledge, specialty and energy, Such insufficiency is especially obvious in the profound areas beyond the author's capabilities to tackle with or to tackle with thoroughly, such as the rationale for particular cases, the connection of the internal mechanism of different cases, and the transformation of historical point of judgment pattern and the rule to identify the discretion of the judge. Therefore, the academic value and the quality of the theory of this article are limited to a large extent. However, the author is conscious of the in-sufficiency and will take it as a momentum to fulfill his destiny and devoted himself to the endless research career. |
PDF Full Text Request