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The Lawyers Negotiated Communication And The Construction Of The Judicial Negotiation Mechanism

Posted on:2017-10-17Degree:DoctorType:Dissertation
Country:ChinaCandidate:J Y MaFull Text:PDF
GTID:1316330509453646Subject:Legal theory
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The thesis starts with discussion of various key questions concerning negotiated justice in theory and judicial practice.Why does juridical practice tend to prefer consultation and seeking for consensus instead of confrontation? What is the root of “negotiated justice” which is conducted with the core concept of consultation and the aim of consensus among parties involved? What are the limitations under the “negotiated justice” regime? What breakthrough could the juridical discourse possibly lead to on “negotiated justice”? What are theoretical connotation and practical effectiveness of juridical discourse? The author addresses these issues in chapter I.“Negotiated justice”-- a new judicial model in procedural doctrine, emphasizes the consultation and seeks for consensus among the main participants in the lawsuit. It proposes that disputes can be resolved during the judicial adjudication of criminal cases through cooperation among public power and private right through dialogue and communication, suggesting that, the main judicial participants(sometimes in opposition) may achieve a mutually beneficial consensus of compromise in criminal procedures. There are many reasons which lead to introduction of and more interest in “negotiated justice”: diversification of primary values led by economic development; intrinsic fissure of adversary judicial concepts and system; lawsuit fatigue resulting from increasing number of cases; inherent requirement of lawsuit essence; the promotion by procurators' discretion right; and sufficient guarantee of the respective advocacy system. In spite of doubt and criticism, “negotiated justice” is much welcomed as a matter of practice. Therefore, “negotiated justice” has flourished in the common law system, civil law system and as well in China, which even shifts from its status as a supplementary mode of justice and becomes the solution to most criminal cases.However, as the time changes, the inherent limitations of “negotiated justice” become increasingly prominent and controversial, such as the limitation of participation, imbalance of procedural rights, and deviation of judiciary justice. The foundamental question lies in how to reform juridical discourse to echo the appeal for judiciary, to settle its argument for legitimacy, to ascertain the reasonable acceptability of its judicial decisions based on the result of consultations, and also to meet the public appeals to social justice.Actually, juridical discourse is the reflection of theory of legal discourse in judicial field. According to that, the rational allocation of procedural rights is carried out, during which all participants involved in the judicial case acquaint them with cognition on account of self-interest, and then equally exchange, dialogue and debate the cognition with other participants. So it can add more rational factors, classify any question of fact and law, put reasons of legal rules and of society as a whole sense into judicial adjudication, resolve the disputes and meanwhile achieve the legitimacy and reasonable acceptability of judicial decision. The initial impetus of juridical discourse is diversified interests resulting from the development of social civilization. The legitimacy foundation is that truth comes from rational consensus. The value appeals are the integration of multiple values and the balance of all parties' benefit. The distinguishing feature is that legal community and public participate corporately and effectively in judiciary. Compared with traditional “negotiated justice”, juridical discourse advocates more cooperation in the legal community, the rational allocation of procedural rights and the public discourse jurisdiction. The main functions of juridical discourse are as follows: first, the lack of legitimate foundation of old justice model is made up by "blend of justice", inviting “much more judicial involvement" and "judicial result of consensus"; second, through negotiation and communication, juridical discourse may help to bridge the gap among public values, deepen the respect and concern of the judiciary to public, absorb and interpret multiple evaluation values of the judiciary, which can settle the reasonable acceptability of judicial decisions; and third juridical discourse balances multi-perspective procedural justice through negotiation and communication, and deduces substantive justice from multiple views. It facilitates the organic unification of substantive justice and procedural justice and mends the justice crisis of traditional judiciary.As the bridge of national public power and private rights in modern society, lawyers take on very important role in the establishment of juridical discourse. Therefore, it is significant to fully understand Chinese lawyers' role, function and ethics for the construction of juridical discourse. Lawyers essentially are introduced in criminal precedures to protect human rights – even for a potential criminal. So the purposeful values of lawyers are determined originally—restricting public power, maintaining legal justice, and safeguarding human rights. In the guidance of purposeful values, lawyers will have particular value preferences in juridical discourse, for instance, the relentless pursuit of the interest-orientation, insistence on endeavoring to equal discourse right, inward reverence towards fidelity and responsibility. So it is the important prerequisite of persistence on own role and completion of vocational mission in juridical discourse, granting lawyers the power to deal with the relationship among participants, legal community and civil society. The thesis reviews the relationship between lawyers and various participants and also lawyers' roles in the relationship. In elaborating the relationship between lawyers and other participants, the author criticizes the paradox of non-fault liability principle to lawyers' instrumentalism and the paradox of partisanship principles to legal instrumentalism, and then confirms that the relationship between lawyers and participants should be “partners in law”. In expounding the relationship between lawyers and other legal professional groups, based on the dissection of the homogeneity —lawyers and other legal professional groups as the legal personality, and of the heterogeneity—lawyers and legal professional groups as the judicial role, the author demonstrates the function of legal professional group in juridical discourse and the cooperation of other legal professional group, which is the inherent requirement of juridical discourse. In explaining the relationship between lawyers and other legal professional groups, the common traits that lawyers and other legal professional groups have are: same ethical orientation- "people-oriented", shared spiritual dimension- “respecting freedom", shared social dimension- "communicative rationality." Given such a role in juridical discourse, lawyers act as procurators who should stick to the duty of loyalty to the parties, and at the same time, as juridical personality that should insist on the duty of being loyal to the law. And when the conflicts of both sides come out, lawyers ought to apply the avoidance and balance principles of values. The functions of lawyers in juridical discourse mainly reflect in the following three aspects: contributing to relieve the tense between objective facts and legal facts; conducing to managing the conflicts between individual rationality and common rationality; and contributing to resolve the contradiction between judicial dictatorship and judicial rationality. These functions enable the juridical discourse to meet the appeals of judicial justice and judicial rationality.How do lawyers communicate and negotiate with public power and in the legal community in the concept of the juridical discourse? What are the elements of communicating and negotiating? What is the path of communication and negotiation? What field do communication and negotiation proceed in? These questions will be elaborated in Chapter III and Chapter IV.The communication and negotiation of lawyers and legal community is based on their “priori consensus abilities”. The “priori consensus abilities” enable lawyers to perceive various paths of legal interpretation in multiple views, which can clear up the arbitrary, biased and irrational judge-monologue speech. However, in order to ensure the communication and negotiation of lawyers and legal community, judges and prosecutors as talk-makers must reshape their roles in the justice. They need to maintain the full equality comparing to lawyers and also be relatively independent. So they can have the freedom of expression, without oppression from executive and other extended will. The communicating and negotiating approaches come out by communicating and negotiating of fact questions, legal issues and legal arguments. The fact about a particular case is the reflective result of communication and negotiation among legal community — lawyers, judges and procurators; The applicable law of judicial decision is the legal norm that lawyers,judges and procurators collaboratively seek and explain through communication and negotiation, rather than just rigid objective existence of law; through “consultation” and “debate”, the cooperation of legal community contributes to the legal argument, which can avoid the arbitrariness, prejudice and unrestraint of judicial dictatorship and realize the coherence and consistency of the legal system simultaneously. On account of diversification of judges' roles, the communication and negotiation field of lawyers and legal community can be divided into internal juridical field and external juridical field. Communication and negotiation in juridical field is closed and using judicial rules. Entities in juridical communication and negotiation defer to the technical rationality of juridical personality. Therefore, people out of the legal community and even the parties who make a great difference on judicial decision are excluded from the juridical field. Meanwhile, communication and negotiation in internal juridical field is open and using social rules. Not only the parties can take part in, but also some other social subject, such as executive power and academic scholars can be involved in, even though they have no direct influence in the cases.Lawyers communicate with the civil society through public negotiation and certain “situational elements” are needed in such negotiation. It is mainly reflected in two aspects: the first one is the “social nature” of lawyer(because of this, lawyer is not defined as national but social); the second one is “public spirit” of the social public which is mainly embodied in the spirit of self-government, willingness to dialogue and rational participation. Compared with public negotiation within legal professional community, the negotiation between lawyers and the social public is different. When the negotiation involves question of facts, the facts of the case focus more on using positive rhetoric and narrative method to build the story due to the nonprofessional feature of the social public, but it is difficult to determine the legal professional community cognizance on legal fact in the judicial field because it may not conform with the evidence application rules. In negotiation concerning legal issues, the social public abides by empirical standard and legal thinking, but not logic, moral or ethics. From this perspective, the negotiation between lawyers and social public will be more beneficial to the public legal enlightenment which promotes legal socialization to some extent and boosts the integration of judicial power between nation and society. Such negotiation may affect the application and interpretation of law. The third way of negotiation is the negotiation of consensus value. A pluralistic society leads to plural axiology conflicts which may result in inconformity of between judicial decision outcomes and social justice, thus judicial negotiation mechanism will solve this problem. Through negotiation with the social public, lawyers will seek the core values that hide behind pluralistic values; negotiation on pluralistic values is conducive to social appropriateness of judicial decision, and is good for the conformity of judicial decision and cultural traditions as well as values in real social life. Of course, the negotiation between lawyers and the social public is necessarily reflected in all cases, they are more reflective in some cases that arouse widespread public opinion, especially those concerning basic morality or public order social conventions. From this point, the negotiation field between lawyers and the social public is not limited to traditional media or internet media, but rises to a public sphere level. In the public sphere, where infinite openness is promoted, every social citizen regardless of class and status is able to realize their dreams to participate in justice equally and express their own opinions without any restriction. Negotiation in the field can be said to be a universal, reflective and rational communication. It is through this communication, social justice and core values in judicial decisions are possible.Judicial negotiation mechanism is not only the demand of the existing judicial system, but also, from the macroscopic perspective, the requirement of judicial power operation from modernization of governance. When the modern country under the rule of law is transformed from rule model to governance model, the judicial power, as the extension of social governance, should also be transformed from "rule thinking" to "management thinking", giving all participants in judicial process "greater activity space and the right to speak". The modernization of governance capacity in the realistic context requires that the operation of judicial power should have the characteristics of "response", "democracy" and "cooperation". All of the characters contain factors of negotiation. Therefore, Chapter V explains the direction and path of the judicial negotiation mechanism construction in China, and the corresponding systems and mechanisms.Each judicial model operation is subject to the constraints both from tradition and reality, and the judicial negotiation system is no exception. A major obstacle to the construction of judicial negotiation mechanism is the "Chinese style" embarrassment during lawyer discussion. Due to the judicial hegemony, the lack of inter-subjectivity, the dislocation of consensus value system and the shortage of legal community ethics, negotiation among lawyers can't be as smooth as expected before. Therefore, the goal of judicial reform should be first to achieve the judicial balanced resistance and interaction expectation, rational penetration of social judicial speech right and the cultivation of legal community ethics, so as to improve the judicial non-rational situation and modify the interaction disorders among judicial roles. The construction of judicial negotiation mechanism, important for the formation of Chinese legal order, calls for the transformation of judicial concepts: from being isolated to pluralistic consensus, bridging the gap between the traditional judicial concepts based on state as well as society and protection of human rights, connecting the judicial justice and social concepts, realizing the transformation from the traditional one-dimension will to the pluralistic consensus under the modern context. In the establishment of the system that ensures the fairness in the negotiation process, the focus is on “the power control by law”, “judicial independence”, “the lawyer autonomy” and “the establishment of judicial observation organization". In the implementation of judicial negotiation operation mechanism, such strategies as "opening the negotiation in justice system" and "building the platform of judicial negotiation mechanism" are mainly adopted.Certainly, there are limitations in juridical discourse. For example, for those difficult and complicated cases in which there are great differences in values and very serious conflicts of interest, it is difficult to reach a consensus even though the communicating and negotiating procedure is equal and sufficient. Besides, as may be limited by timeframe, it is impossible to make full use of all means of communication and negotiation as in an ideal situation. Therefore, it is eventually needed that trial judges make peremptory decisions in order to solve the cases, according to the communication and negotiation and also their understanding. Nevertheless, we could not refuse to construct juridical discourse just because of particular cases that are difficult to reach a consensus and some limitations. As remarked by some scholars, “juridical discourse is not necessarily the best litigation system, but no worse than anything else”.
Keywords/Search Tags:negotiated justice, judicial consultation, lawyers, judicial society, public domain
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