Research On Litigation Discourse Of Modern China

Modern China refers to the period from the late Qing government reform in 1901 to the founding of New China in 1949.This historical stage is a period of change from the traditional legal system to the modern legal system.This brought about systematic changes in legal thinking,legal systems,and legal organizations.The discourse of the lawsuit will also be changed and developed.It is the reason for choosing to study the discourse of this historical period.The first thing that needs to be clarified in the study is the meaning of "litigation discourse." The meaning of litigation discourse can be understood from the micro and macro levels.This understanding is based on the meaning of discourse in the fields of linguistics and social sciences and the meaning of litigation.At the micro level,litigation discourse refers to the use of language in the context of judiciary.That is,it refers to the parties to the case and the judiciary,using the language to reproduce the facts of the case,express the claim,referee cases,etc.This is reflected in verbal and written texts such as complaints,pleadings,witness testimony,court records and judgments.At the macro level,litigation discourse refers to the overall representation of a symbol within a system that provides a way to talk and interpret a case.It "produces" the specific use of language in the context of judiciary.And it can be generalized to a specific discourse type or discourse system.Corresponding to the meaning of "litigation discourse",the analysis of litigation discourse includes both micro and macro levels.According to the "discourse practice" analysis method and the pattern and framework of the "discourse history" analysis method,the micro-level litigation discourse analysis methods mainly include two aspects: language analysis of legal texts and analysis of discourse practice.The linguistic analysis of legal texts includes four aspects.The first,the analysis of the overall legal text language organization includes the analysis of narrative mode and argumentation mode.The functional relationship between sentences includes three types of interpretation,extension and enhancement.Second,the modality reflects the "closeness" of a certain expression expressed by the sentence.It is usually achieved by modal aids such as "must,maybe." Analysis of discourse practice includes explicit intertextuality analysis and interdiscursivity analysis.Explicit intertextuality means that the legal text will directly reveal the fragments of other texts and be publicly revealed.It is mainly realized in the form of "discourse description".And it is also implemented in the form of "presuppositions".Interdiscursivity is mainly reflected in how the subject of litigation legal relationship uses different styles,different expressions of discourse types,and different styles to construct legal texts.It not only constructs the facts and claims of the case,but also is the key to construct the subject of legal relationship(image).The analysis of the macro discourse system includes the analysis of the constituent rules of discourse objects,statement model,concepts and topics.The analysis of the constituent rules of discourse objects includes the level at which the object appears,and the authority of the object definition.The analysis of the constituent rules of statement mode constitutes the analysis of who is the subject of the litigation legal relationship and the place where they express their claims.The analysis of the concept constituent rules is to explore the organizational rules that appear and flow in the field of representation.It is mainly realized through the rhetorical mode and the argumentation mode of the parties and judicial personnel.The analysis of the subject composition is to analyze the basic strategy used by the subject of litigation legal relationship to form a topic.The use of language cannot be separated from the specific context.After completing the construction of the discourse analysis method,the problem to be studied is the institutional context in which litigation discourse is formed.Institutional context is a concentrated expression of power relations.The institutional context of the formation of modern Chinese litigation discourse includes constitutional context and judicial context.Its constitutional context is embodied in the independence of judicial power in the allocation of state power and the establishment of the constitutional equality of individuals.The context of the judiciary is embodied in the establishment of an independent and specialized judicial system.It is also reflected in the realization of the independence status of the judiciary at each trial level.At the same time,the formation of a special litigation legal system makes the law become the authority that dominates the operation of the judicial system.In the context of China's modern legal reform,the institutional context of litigation discourse also show volatility and uncertainty.After clarifying the institutional context of modern Chinese litigation discourse,it is necessary to study the discourse expression and macro discourse system of the parties and the judiciary.As far as the litigation discourse of the parties is concerned,its appellation term for the judiciary reflects a non-reciprocal relationship between them.The overall language organization is dominated by legal rules,but the traditional relational narrative mode still exists.The plaintiff generally uses the statement tone,and the defendant uses the questioning tone to express doubts about certain facts and claims.In judicial practice,it generally uses modal terms with a less certain degree of certainty,which can more objectively express case facts and claims.This is different from the exaggerated and highly deterministic expression of traditional litigation discourse.Interdiscursivity reflects the constructive nature of legal discourse and moral discourse on case facts and claims.It not only expresses its rights appeal through legal discourse,but also shapes itself as the image of the "weak" with moral discourse.As far as the discourse expression of the judiciary is concerned,the overall language organization is embodied in a legal-oriented investigation-type argument.Prosecutors generally use more ambiguous modal terms,while judges generally use highly deterministic modal words.Interdiscursivity reflects the combination of a single legal discourse with other different text types.There are mainly two discourse systems during this period.It includes the legal discourse system and the moral discourse system.As far as the legal discourse system is concerned,its discourse objects mainly appear in the judiciary and law is the authority to define these objects.The subject of the production of the statement is a professional with legal knowledge,and the location of the statement is determined by law.The organizational rules of the concept are the legal argumentation model and the rhetorical model.The constitution of the subject is the rights and obligations of the law.The basis of the argument is the various evidence related to facts and laws.As far as the composition of moral discourse is concerned,its objects are concentrated between the family and the neighborhood.Moral code is the authority that defines the object.The main body of the statement is the ordinary people.The subject of the statement in the lawsuit is often in a suppressed position.A series of concepts related to interpersonal relationships and human conduct,mainly organized through rhetorical devices and narrative models.The theme is composed of social relations and interpersonal relationships.The basis of the argument is the human conduct and behavior pattern.At last,what needs to be explored is the formation mechanism of modern Chinese litigation discourse.The original state of modern Chinese litigation discourse was the litigation discourse of the Qing Dynasty.It evolved through the early years of the Republic of China and the period of Beiyang Government,and was finally finalized during the period of Nanjing National Government.By comparing the expression and structure of litigation discourse during the Qing Dynasty and the period of Nanjing National Government,we can find that the rational factors in the expression of modern Chinese litigation are gradually withdrawing,and narrative mode and argumentation model with strict logic form gradually enter the judicial field.During this period,the objective discourse expressions gradually formed.Correspondingly,moral discourse declined and legal discourse gradually dominated.The generation of modern Chinese litigation discourse is mainly influenced by the change of institutional context.This is reflected in the transformation of the macro-institutional context from the rule of man to the rule of law.And the judicial system is gradually transformed from a judicial system led by the judge's individual authority to a judicial system dominated by legal authority.At the same time,the establishment of a Westernized legal system(from the duty-based to the pursuit of rights)and the dissemination of legal knowledge also affected the formation of litigation discourse.