Concepts And Methods Of Judging Hard Cases In Administrative Litigation

As an exceptional application of the law,hard cases can best reflect which factors determine the judgement.In recent years,research on hard cases in China mainly focuses on introducing theories of hard cases abroad,and drawn upon dogmatics and hermeneutics of law.However,the definition and judgement of hard cases in real judicial practice have been neglected.Nevertheless,it is of great importance to improve legislation,optimize legal teaching,and promote judicial system and mechanism reform.To achieve this goal,empirical research is needed.The responsibilities of the courts at different levels have determined that hard cases have different meanings.Drawing on grounded theory approach,in-depth interviews with administrative judges in the six provinces and nine middle-level courts in China was conducted.The study found that the hard cases in the eyes of middle-level administrative judges include the application of the law,the cases requiring policy considerations and risking their occupational safety.In the first case scenario,the judges can solve the problem by using legal thinking and relying on the existing institutional procedures,which is legitimacy oriented and aim to maintain the stability of the law.In the case of policy considerations,it is necessary to find a solution to the case through results-oriented,interest-measuring,etc.Such judgements are problem-solving oriented,or pragmatic.When the occupational safety is jeopardized by letters,visits,performance assessment and even the risk of dereliction of duty,the judge will maximize the risk evasion or mitigate the risk by submitting cases to the review committee or asking for instruction from leaders of the court.This way of thinking is closure oriented.The cognition and handling of hard cases by intermediate court judges always focuses on "legal thinking,policy thinking,and occupational safety thinking." Of course,no matter what kind of concept are applied,judges must ensure that the case hearing process and documents are in conformity with the law,the role of legal norms in hard cases is to justify the judgment.Hard cases concerned with application of law are the most common ones in judicial practice,and reflected by the internal conflict of the norm of administrative law.The Liability Clause of the Land Administration Law is one of the most applicable laws in administrative trials.There are problems such as lack of legal norms,conflicts of laws,lagging laws,and unclear meanings.It can focus on how judges apply imperfect laws.The study found that in the face of such imperfect laws,instead of complaining,the administrative judges adhered to the concept of rule-based judgement with the protection of rights as the starting point,and make a holistic interpretation of the problem in the entire legal system to make up for the imperfection of the law.At the same time,the starting point of the rationality review is that the unreasonable administrative behavior reaches the level that is unacceptable to the average person,that is,the principle of minimum tolerance.Another manifestation of the application of law is the conflict between public law and private law.The revocation of company registration cases embodies the incompleteness of company law,conflicts between company law and other administrative laws and regulations.The study found that there was a tendency in the administrative trial to ignore the civil field as the root cause of disputes and excessively extend the power of administrative review.This reflects the conflict between judges' ideas on deregulation or intensification of regulation,limited or omnipotence of administrative and judicial functions.The method of holistic interpretation can be used to resolve conflicts between laws,establish the concept of administrative justice and clarify the true purpose of the plaintiff.It should be noted that the so-called substantive resolution of administrative disputes is by no means a solution to all disputes by administrative litigation.The administrative is returned to the administration,and the civil is returned to the civil.Of course,no matter what kind of legal difficulties,although the judge's ability is an important factor,it is the system of the higher court's guidance and economic policy agitation to shape their concept.The high court defines hard cases differently from lower-level courts.The “request for reply” case that existed before the judicial reform reflected that hard cases at that time were not hard in terms of law application.The High Court's request is often mixed with many considerations and choices of policies and interests.For the Supreme Court,the best option is to respond directly applying articles of law.This seems to be a formalist rule of law.In fact,there are certain strategic choices.This strategy is closely related to the role of the court's political status and power system configuration,and directly depends on whether the asked topic will be commensurate with its political status and power matching ability,reflecting the Supreme Court's "view of safe judgement".After the procedural reform of the system,the high court's judicial activism seems to become larger,but the relatively special position of the court under the complex power allocation system makes it difficult for classical hard case theory to apply.Thus,a pragmatic approach is adopted.Cases heard at the Supreme Court are long-term appeals or retrial cases.Such cases which are considered as hard cases by the lower courts are actually normal cases in the Supreme Court.The Supreme Court's method of refereeing and refereeing are related to difficult cases.Examining the typical cases published by the Second Circuit Court found that three methods of judging,such as legalism,principled judgement,and result-oriented judgement,are reflected in the administrative trials of the Supreme Court.However,the Supreme Court does not pursue and favor one of the methods,but rather mix these methods,which reflects the Supreme Court's pragmatism.This kind of concept pursues the substantive resolution of disputes,behind which is a limited judicial activist philosophy.Of course,this concept hinders the judgement's demonstrative function due to the inconsistent scale,and reduces the stability and predictability of the judgement.Through the analysis of the judgmental methods and concepts of the administrative judges at all levels,the study found that judgement was not the result of the mechanical application of law,but a process of decision-making influenced by various factors.Although the Chinese administrative judge's judgement cannot fully apply the foreign attitude model and the rational choice model,it is also deeply affected by those various factors.The actual administrative judicial power has many "faces".In reality,an administrative judge is not an absolute "economic man" but a "realistic person." To build a decision-making model for Chinese administrative judges,in addition to focusing on legal norms and developing interpretation of law,we should also consider the influence of various variables such as politics,organization,public,and judges.Therefore,in the judicial reform,the court should focus on reducing the excessive anxiety of the judges on the judicial responsibility system,attach importance to the internal organization of the court,and prevent the superior court from over-influencing the decision-making of the lower court;the court should establish a benign interaction with the local party committee government.Prevent inappropriate interpretation of policies such as the overall situation and development to ensure that judicial reform policies are implemented in administrative trials.