Research On The Judicial Application Of Interests-Balancing In China

Since professor Liang Huixing introduced the Japanese Interests-balancing theory to China in 1994,the study of the Interests-balancing theory in China has gone through 23 years.The correct application of Interests-balancing in judicial trial is particularly important for the realization of case justice and full play of the leading role of judicial justice to social justice.Study on the judicial application of Interests-balancing and propose norms and constraints,whether development theory or service trial practice,all have important practical significance.As a theoretical basis of the full paper,the introduction part analyzes the theoretical origin and types of the judicial application of Interests-balancing,points out the contribution and limitations of the Interests-balancing theory,summarizes the existing research results and the path of localization research.Starting from the establishment of the Interests-balancing theory which consistent with Chinese judicial tradition,legal system and social development goals,the introduction part also reflect on the shortcomings of existing research and due research strategies,to make the necessary theoretical preparation for in-depth study of judicial application of interests-balancing.In this paper,the author tries to construct the application theory of interests-balancing,which is compatible with Chinese judicial tradition,legal system and social development goal,as the research direction and writing guidance.The research orientation is divided into two dimensions:method and thinking.The study on the interests-balancing thinking carries the correction function of the interests-balancing thinking to perfect the law and the rule of law,and plays the role of fully exerting the subjective initiative of the interests-balancing;The study on the interests-balancing method carries the conservatism function of legal method on law and the rule of law,and shoulders the mission to give the legitimacy and objectivity of balancing conclusion.To develop our own judicial application theory of the interests-balancing,to grasp the actual situation of the interests-balancing in the judicial practice in China,adhere to from the reality to the ideal to reality,and on the research route by Verify between reality and ought to be.In addition to introduction and conclusion part,the paper consists of six parts,including the concept of interests-balancing,characteristics and similar terms discrimination;the investigation of the present situation of the judicial application of interests-balancing in China;the main problems of judicial application of our interests-balancing;the guiding ideas of judicial application of interests-balancing;the operational norm of judicial application of interests-balancing;the restriction and evaluation of judicial application of interests-balancing.As the basic work of judicial application,the paper defines the mainstream understanding of the basic issues of interests-balancing by the concept,characteristics and similar terms discrimination chapter,including the basic theoretical issues such as the concept,nature,characteristics,the similar terms' meaning and usage.Recognizing that the measurement of interests-balancing is not only a method of legal application but also a legal thinking,it advocates to grasp the connotation of interests-balancing from both macro and micro perspectives.Microscopically,the interests-balancing is defined as a legal method,adjudicative method or judicial method;Macroscopically,it is defined as a kind of legal thinking mode,legal thinking method,judicial principle and even a type of judicial ideology.The paper summarizes the characteristics of interests-balancing:as a legal application method,interests-balancing has the particularity of cases in justice,the passive applicability by the premise of objective conflict of interests,the legitimacy of process and accordance,the repetition of the process and the Multi-solution of the conclusion.As a legal thinking,interests-balancing has the enthusiasm of judicial activism,the result orientation,the conclusion compromise,the universal and priority of application,the objectivity in consideration and the balance among feelings,reasons,and law on the target.In view of the limitations of any theory,advocates to refine the theoretical consensus,focus on the role of justice,to use "conflict resolution" to summarize the essence of the interests-balancing in justice.Next,the paper lists four concepts that are the closest to the concept of "interests-balancing",Strictly speaking,there is a certain difference between these concepts and the concept of interests-balancing as a legal method,all have their significance.However;if standing in the perspective of generalized interests-balancing,the concept of interests-balancing is divided into two dimensions of method and thinking,so these similar concepts can be included under the overall concept of interests-balancing.In the investigation of the present situation of the judicial application of interests-balancing in China,this paper explores how judges treat the interests-balancing and' the real situation of application of interests-balancing in judicial trial.Through the investigation of the group of judges and the analysis of the judgments of the Supreme People's Court "China Legal Documents Net",it is conclude that there is a special preference for Chinese judges to treat judicial methods which is including the interests-balancing.The most intuitive trust and support of judges' group to the interests-balancing theory is the conscious application of judges in difficult case trials.In China,the interests-balancing method is more and more attention by the judiciary,that is an indisputable fact.It is widely recognized that,due to the lag of law,the uncertainty of legal provisions,the rule of justice itself,the interests-balancing unique role on the pursuit of substantive rationality and the influence of the complex application of judicial methods,the interests-balancing is necessary in China.On the basis of data statistics and quantitative analysis of the judicial application of interests-balancing,we see that the application of interests-balancing in justice in China shows the trend of increasing number of cases,the type of case is more centralized,and involving a wider geographical area.This paper summarizes the three main characteristics of the judicial application interests-balancing,which are the coexistence of the passive application and the active application,the coexistence of the initiative of pursuing justice and result orientation of justice,the mutual corroboration of judge prejudice and legal rules.In the main problems of judicial application of our interests-balancing,the paper combined with typical case analysis,summarizes the inappropriate balancing of the conservative or aggressive tendencies in judicial trial,namely,the four manifestations of abuse the interests-balancing:The absence of interests-balancing,that is,Should be balanced but not balanced,can be further divided into the balancing absence when legal provisions are unknown,the balancing absence when there are legal loopholes,the balancing absence when there is legal value conflict;The improper interests-balancing,that is,Shouldn't be balanced but balanced;The balancing error,that is,should be balanced and try to balance,but the conclusion is not set up;The balancing defects,namely,should be balanced and try to balance also the conclusion can be set up,but individual aspects are not appropriate enough.Of course,the main problems of the judicial application of interests-balancing not only focus on the abuse of judges,but also exist many tendentiousness such as the judges' free space is easy to be kidnapped by most people,the demonstration of the result of interests-balancing by the adjudicative document need to be standardized,the uniform application of law needs to be improved,the public perception of interests needs to be improved,the case of improper mediation are inadequate etc.Then the paper puts forward the guiding ideas of judicial application of interests-balancing.According to the survey conclusion of the current situation of interests-balancing judicial application,the paper puts forward "In the substantive sentencing phase,the greatest justice in the pursuit of the existing legal framework,achieve the balance of universal justice and special justice;In the results Justification phase,pursues the goal of measuring the maximum acceptability of judgment,realizing the agreement of substantive rationality and formal legitimacy",that is the basic goal of interests-balancing judicial application and the overall thinking of the achieving the goal of justice.From the perspective of thinking operation process,the basic thinking route of judge to balance interests is given;from the perspective of the method application in cases,the specific principle of judicial application of interests-balancing is discussed.The discussion on the operational norm of judicial application of interests-balancing belongs to the key chapter of the paper,which consists of three main content:The occasion and domain of the interests-balancing;Standards and basis of the interests-balancing;Steps of the interests-balancing.In the occasion and domain of the interests-balancing,the paper points out that the interests-balancing has broad judicial application space,of course,there are some restrictions in the occasion of interests-balancing application.Interests-balancing in various legal departments also has a wide range of applications,there are more special focus in the three trials,can be said as long as the existence of judge's subjective value judgment,there is possible for judge's to balance interests In the judiciary.In the standards and basis of the interests-balancing,the paper summarizes two types of factors that to be considered by judge when the balances interests:one is the interests of direct conflict;Second,the interests-balancing standards of indirect conflict;It points out that the key of judge's trial is the trade-off between the latter,that is the choice and balance of balancing standards make the judge obtain the basis of judgment.The case justice achieved can be seen as a balance of interests after the reconciliation of various standards.And the judge's decision can only be based on the subjective choice of objectivity,legitimacy,that is to meet the balancing standards which compliance with individual case.In the steps of interests-balancing,the paper gives the five-steps for the judge to trial cases application interests-balancing:interest survey analysis,balance system interests,balance the specific interests of case conflict,search for legal reasons,justify conclusions and correction conclusions.With the analysis of many typical cases,this paper discusses the specific implementation steps of each link of the judicial application of interests-balancing,and puts forward the suggestions of sequence application many main methods,including the legal value method,economic analysis method,sociology method,etc.Finally,this paper discusses the restriction and evaluation of judicial application of interests-balancing.The restriction of the judicial application of interests-balancing can be divided into the internal restriction of interests-balancing,including the requirements of the objectivity of empirical law,the rationalization of public rationality,the inevitable requirement of the principle of judicial passivity;The external restriction of interests-balancing,including the restriction of the qualification system of judges and the qualification of judges,the protection of the principle of direct trial and verbal trial and the restriction of debate,the protection of adversary system and the restriction of disciplinary punishment,the case guidance system and the connection with requirements of the same case,the restriction of mediation(settlement)system,the restriction of the interpretation of the trial justification by the judgment;the restriction of the trial grade system,the restriction of internal and external supervision mechanism of judicial system.In the evaluation of the interests-balancing judicial application,combined with case analysis,the qualitative evaluation index of the optimal judgment results is given.Finally,the other factors affecting the judge to trial are discussed.The conclusion part is based on the interest measurement of the role of judges and career requirements,and puts forward that judges should pay attention to the multi-angle training of their judicial capacity and professional quality.By now,the article completes the attempt and effort from the thinking to the method,from the reality to the ideal,to Rich and development the Chinese localization interests-balancing theory.