Operational Logic For Organization Structure Of Gross-root Court Under The View Of Legal Sociology

The research history against gross-root judicial system by western scholars is long-standing. During these researches, some scholars carried out very inspiring researches against the judge and judicial activity from the view angle of social structure and activity. The legal anthropology carried out the deep analysis against the mutual effect between culture and society as well as gross-root justice and village dispute resolution from the microcosmic perspective. The legal sociology carried out the pioneering research against the local political, social and lawful ecology for judicial organization and judge of gross-root criminal court. The above-mentioned researches are provided with certain basis as well as methodological perspective and speculative resource of comparative method. However, these overseas experiences can be only referred to instead of copied completely.The researches carried out by relevant domestic and foreign gross-root judicial organizations are mainly reflected as three binary paradigms and three unitary research approaches. In three binary paradigms of traditional judicial system research, the analysis pattern of "System--Process" fills in gaps of knowledge and theory for system history from the static dimension. It is hard to avoid entering into the bisection pattern of "Structure--Action" of traditional structuralism, ignoring subjective initiative of actor and activities of other litigation subjects in the structure if the significance of judicial process and law is understood from the dynamic dimension. The basic logic for law construction of China is explained by the pattern of "Superincumbent knowledge planning--Bottom-up knowledge strategy". Both the "planning knowledge" and "strategy knowledge" generated from this logic are understood from the view angle of "outsider" instead of "insider". Therefore, although it seems to possess pertinence, it is hard to have the pragmatic meaning of reform. The pattern of "Nation--Society" is from the superincumbent criticism against "nation" paradigm. The pattern aims to introduce the ideal of civil society or society into the research on national legality development. However, the theory pursuing abstraction and generalization tends to ignore the recourse of specific rule and detail. On this basis, three unitary research approaches surpassing binary paradigm are generated. The core principle of "contextualism" requires researchers to enter into the context of system and specification. However, the theoretical summary and generalization of "conceptualization" are lacked as a whole. The value of "relative rationalism" lies in emphasizing that the judicial reform of China must follow the gradualism, better and accumulation. However, it still does not truly enter into the living world of judicial reform subject. The pattern of "party-centered pattern" expresses the space and value of legal anthropology theory in judicial system research. However, the colonial assembly (the relationship between organization and external environment) is not revealed due to the theoretical limit of this pattern.In order to solve the above-mentioned theoretical predicament in current gross-root judicial organization research, this research proposes to march toward one "subject-centered" research pattern. Namely, the methodology should be selected by returning back to the center "subject" of problem and centering on the problem to be solved in the "subject". Various research methods as technology and tool can be integrated, the society, culture and system can be communication, and the gross-root judicial organization structure of China can be improved and reformed with this pattern.Following this path, this paper takes W People's Court of Y Province at southwest frontier of China as the individual case, and specifically inspects the practical predicament faced by the judge, tribunal and court in organization structure of W People's Court from inside and outside these two parts and from three levels, namely, the ignored subject, ignored process and ignored relationship. The internal and external operating processes, features and strategies for "power-type" organization structure of gross-root court are explained systematically combining three dimensions, namely, the static state and dynamic state, structure and action, and the horizontal one and longitudinal one. Finally, the current framework of gross-root judicial organization structure is generalized and summarized. Meanwhile, the possible system reconstruction is carried out.Judging from text structure and contents of this paper specifically, this paper consists of the introduction, body and conclusion. The body is composed of four chapters.The introduction part is started from one individual case for case-filing tribunal of grass-root court. Reason for selecting the court at the border ethnic minority area as the case by this paper are explained by three aspects, namely, the specificity for grass-root justice at the border ethnic minority area, the mode of "Border--Center" for modernization of legal system and weak study of judicial system at minority area. The research purpose for putting forward this paper is to carry out the "categorization" research against grass-root judicial organization structure from the angle of structure-action and space-system so as to explore the true prospect for gross-root judicial organization of China, and carry out necessary reflection and reconstruction against it. This part systematically combs different theoretical paradigms related to gross-out judicial system research. Aiming at possible existing limits for three binary opposition paradigms and three unitary research approach of existing research, it is proposed to march toward the third road "subject-centered"; then, it is emphasized to expand the theoretical research category against the "subject" under the paradigm "subject-centered", keep inclusiveness and openness for the research method, and keep one opinion of "Relevance--Explanation" for the research approach. Finally, it is proposed to start from legal dogmatic for the research method so as to return back to the legal dogmatic finally. Furthermore, material sources for research method and empirical research of this paper are specifically explained in this part.In Chapter one, the operating process for internal organizational structure of W People's Court is inspected by expanding the research method of individual case. The multiple logic and the mutual effects between them and subject are emphasized during the operating process of judicial organization. It aims at deeply describing the true prospect for daily operation of gross-root judicial organization of China. Three logics (namely, the technical logic, social logic and power logic) constructing its internal organizational structure are combed in transition for sub-tribunal structure of W People's Court under the space-time intersection. In daily operation for gross-root justice of China, the organizational style is shown as the control method dominated by power logic preference when triple logic is encountered with action of subject so as to generate three paradoxes for sub-tribunal organization structure of gross-root court of China at present, namely, the magnification of chamber scale and involution of operation effect, de-administration of judicial reform and popularity of organizational relation as well as the hierarchy of space and confusion of power.In Chapter two, the triple field in daily life of gross-root judge is drawn first through the layer-layer analysis on this organizational phenomenon (why the gross-root judge leaves the office). As the law man in judicial field, the gross-root judge only enjoys the "limited" judicial judgment right under the reciprocal effects of power field and social field. The judge as the social man should consider and solve various social occasions deeply embedded into stoical field. The judge as the civil servant should face the daily politics from the power field. Then, the paper points out that the gross-root judges dominated by the power field show three different roles and demission types respectively in actions, namely, the plateau-type demission of power-held judge, the bottleneck-type demission of power-attached judge and no demission selection of power-margin judge generally.In Chapter three, the practical dilemma for internal two typical organizational structure of W People's Court is specifically'explained from two organization phenomenon, namely, the duty separation and local extraction. Since 2009, the second register court has been established in the Supreme People's Court. Then from the high court to grassroots court, it has been established in each province. Since its inception, there is a great separation between its expected function and practical function. Its expected functions are to solve the letters and visits of law and litigation, retrial register and explanation after judge. But in practice, due to the ambiguity of legal norms and the enormous social needs space of the pre litigation consulting in the frontier minority areas, its duties become vague. Its function gradually has been changed to provide pre litigation guidance and consulting. The key issues of its further development are to clear its position, clarify its function and give more retrial jurisdiction. Studying on the People's Tribunal is mainly manifested as three kinds of two opposite paradigm:the "system-process", "knowledge planning from top to bottom-knowledge strategy from bottom to top" and "state-society". It is necessary to use the "subject centered" and in the "Life world-People's court-Litigation participants" coexistence as the third road to integrate the conflict between those methodology. In the "grass root" of the "grass root", it forms and develops the basic and extended function. Restricted by the structure of the organization, it is constantly being marginalized and shown to be anti-structural action. Overall, the organization is characterized by local extraction. In the sense, the direction of the judicial reform is to reconstruct the trial function of the people's court and pay attention to the material and spiritual construction and to the uniqueness of the people's court in the frontier minority areas.The fourth chapter focuses on the analysis of the relationship between the W people's court and the grass-roots political and legal committee, public security organs and procuratorial organs. From the perspective of the constructivism and structuralism, this paper is based on the empirical fieldwork studies of the Political and Legal Committee of W City in Yunnan Province to gradually analyze from case to structure, and structure to men, then to explore in the interaction between the Politics and Law sectors and the committee as the "Other", the construction of the organizational structure. Based on the analysis of spatial and temporal factors, this paper summed up the internal and external structure and the expression way of the organization. Studies show that the Committee cannot easily intervene the case processing of the court, its spatial behavior is not without boundary and the effect of behavior will also be dual constrained by the formal system and the "anti structural" dynamic behavior of the court. In contemporary justice system of China, a pattern of collusion has become a kind of institutionalized informal action among police, prosecutor and court. Base on empirical research, analyzing the outward appearance till reality show in order to excavate its long-standing time-space background and structural basis. This pattern of collusion, its essence reflects in organization location of external court, in which primary court reform should be a sort of diversified and comprehensive planning and design, and then lead to a new perspective from organizational interaction angle.In conclusion, the department reviews the theoretical problem of "gross-root judicial organization structure" argued by this paper again. Furthermore, it points out that the current gross-root judicial organization of China is one "power-type" organization structure, and there are deep traditional, social and cultural reasons for its generation. Features of "power-type" judicial organization structure are shown as the identity of power subject, dependency of power relation, individuality of power operation and diversity of power source. Then, it points out that the possible path for judicial reform of China in future is based on the communicational logic to return to the "trial-type" judicial organization structure. Its core principle is to take the judge as the center in action subjection of judicial organization, take the trial organization as the center in the framework of internal organization department and take the trail as the center in the external relationship of judicial organization.