Study On The Characteristics And Constraint Mechanism Of Judge Thinking

Thinking is a subjective activity of human brain,with a certain degree of freedom.But at the same time,thinking is a kind of subjective activity of human brain in the specific objective environment,and the influence of specific objective conditions on human brain is not completely ruled out.In other words,human thinking is a subjective activity completed under the restriction of objective environment.The simple understanding of legal thinking is "thinking according to the law",which is the most stable and intuitive way of interpretation.In this interpretation,it is easy for people to grasp that the concept of legal thinking is based on the law,rather than other substantive factors outside the law,which is crucial for adhering to the rule of law.Legal thinking includes both legal elements and legal professional elements.In a narrow sense,legal thinking refers to the way of thinking used by legal professional community.Legal professionals are the main body of legal thinking,which is limited to legal professionals.The legal consciousness of the general public is obviously different from the legal thinking of professional lawyers.It is more meaningful to emphasize that the narrow sense of legal thinking is a professional legal professional thinking,which is more conducive to the professional development of our legal professional community,so as to promote the construction of modern rule of law.Legal thinking is closely related to legal method.Legal method is the embodiment of legal thinking,and legal thinking rules are the focus of legal methodology research.Therefore,the study of legal thinking is inseparable from the study of legal methods and legal thinking rules.The judge's thinking is a part of the legal thinking,which is the thinking process for the judge to form the judgment result and has a great influence on the judgment result.Because of the particularity of judge's profession,judge's thinking is different from other decision-making thinking and other legal professional thinking.It is of great significance to study the characteristics of judge's thinking for analyzing the formation process of judgment.A judge is the only person who has obtained the legal judicial qualification and is specialized in judicial work and exercises the judicial power of the state.Judge's thinking is subordinate to legal thinking and has common characteristics with general legal thinking,including dogmatics,procedure and conservatism.Judge's thinking is the trial professionalization of legal thinking,which has the characteristics of trial professional thinking that general legal thinking does not have,such as neutrality,balance and practical rationality.Therefore,analyzing its characteristics from the perspective of legal attributes and judicial professional attributes is conducive to fully and comprehensively analyzing the judge's thinking process.The judge's thinking is arbitrary and exploratory.The arbitrariness of judges' thinking first highlights the identity of judges as authoritative subjects in judicial activities.However,this kind of arbitrariness is not based on the pure personal preference and the "arbitrariness" that excludes the normal rationality,but on the legal decision theory that the power subject analyzes and judges by using the legal form that conforms to the standard of universal justice.This kind of legal decisionism is closely related to legal dogmatism and legal autonomy.Legal autonomy usually means that the law has the characteristics of logical self consistency,predictability and stability,which can realize the development demand of "self-sufficiency".Although there are uncertain factors in law,we can't deny the autonomy of law.The autonomy of law is still of great significance.The so-called legal autonomy is not to emphasize that the law can really replace the role of people in judicial adjudication,but to emphasize that the adjudicator should use the law to solve social disputes on the basis of respecting the autonomy of the law.The arbitrariness of judges' thinking has two basic requirements: the first is to require judges to adhere to the autonomy of the law and make decisions according to the law;the second is the authority of judges in judicial adjudication,and the conclusion of judges' legal interpretation and legal argumentation is the only final and effective conclusion,not the conclusion made by other subjects.At the same time,we can't ignore the rationality contained in realistic judgment and substantive rule of law thinking.Arbitrariness does not rule out the characteristics of inquiry.Legal autonomy can not make the law "self-sufficient" in a completely closed system.Due to the complexity and variability of social life and the conservatism and lag of legal norms,the way of thinking of using law to make decisions also needs to absorb the correction or supplement through inquiry.In the process of the trial of specific cases,the judge's thinking should not only maintain the autonomy and judicial authority of the law,but also carry out a certain degree of creative exploration in order to obtain an acceptable judgment result.Adhering to the autonomy of the law is a gesture that should be adhered to in the trial practice,and it is a goal pursuit for the formal rule of law.But on this basis,we also need to recognize that the realization of case justice sometimes needs to "redefine" on the basis of the original intention of the law,or with the help of some substantive factors other than the legal norms to improve or buffer the legal norms and litigation The inequality between cases.Inquiry is the supplement of legal autonomy,and inquiry contains some creativity,while "dogmatism" and "inquiry" need to be constrained by the legal professional community.The judge's thinking process is the formation process of the judgment result,and the legitimacy of the judge's thinking determines the legitimacy of the judgment result.To explore the legitimacy of judges' thinking,we need to clarify the basic concepts of legal legitimacy and moral legitimacy,legitimacy and justification.The acceptability of the judgment is an effective verification of the legitimacy of the judge's thinking.Judicial power itself can not directly produce the legitimacy of judges' thinking,and the neutrality of judicial power and the autonomy of law are the basis of the legitimacy of judges' thinking.Judge's trial thinking mainly includes judgment thinking mode and mediation thinking mode,and judgment thinking mainly includes inclusive thinking and negotiation thinking.In these modes of thinking,there are corresponding sources of legitimacy.On the basis of legitimacy,the judge's thinking has certain uncertainty.Due to the uncertainty of the law itself,and the interference of substantive factors and extrajudicial factors,the judge's thinking will be uncertain.The neglect of the thinking rules makes the judge's thinking lack the guidance of internal legitimacy,and the guidance of various external factors cannot be avoided in the judge's working environment.In China,the accountability system of judges is not perfect,and it is difficult to effectively restrict the thinking of judges by investigating the responsibility of judges through the results of misjudged cases.Therefore,through the analysis of the uncertainty in the judge's thinking,we can further clarify the significance of the judge's thinking needs to be constrained by the external mechanism.The judge's thinking is a kind of subjective activity with a certain degree of secrecy.The effective restriction of judges' thinking needs the guidance of legal thinking rules.The rule of legal thinking is the focus of legal methodology research.The application of specific legal methods must comply with the corresponding rule of legal thinking,so as to ensure that legal methods will not be abused and become a tool to cover up the process of improper thinking.However,in our country's statutory law system,which is mainly based on the rules of conduct,the rules of legal thinking are relatively lacking,and only the rules of conduct can not directly regulate the thinking of judges.The rule of legal thinking is the requirement of formal rule of law,the requirement of realizing case justice and the expansion of formal logic.It is difficult for the rule of legal thinking to be applied compulsorily,which plays a guiding role.The rule of legal thinking should emphasize the maintenance of legal decisionism.Taking the rule of legal interpretation as an example,in order to ensure the realization of the rule of law,literal interpretation and systematic interpretation should take precedence over other methods of legal interpretation.The application of purpose interpretation must be based on the principle of exhaustive literal interpretation and systematic interpretation,and fully demonstrate the interpretation results.As an external constraint of judges' thinking,the judicial system has a strong role in supervising and guiding judges' thinking.The reform of the judge post system is an important part of the new round of judicial reform,which is conducive to the further realization of the independence,elitism and impartiality of the judicial trial mode in China.The reform of judge post system plays a positive role in optimizing the allocation of judicial resources,improving the operation mechanism and supervision mechanism of judicial power.The reform of judges' post system has brought many changes to the external environment of judges' thinking.The reform of analysts' post system is of great significance to the restriction and influence of judges' thinking.The reform of the post system has many positive effects,such as the further optimization of the allocation of judicial resources,the strengthening of the trial centered doctrine,and the stricter accountability mechanism.The reform measures of post system restrict the thinking of judges to a certain extent,and at the same time promote it.To explore the relationship between the concentration of judicial power and the independent thinking of judges,the performance appraisal and the efficiency thinking of judges can effectively improve the incentive mechanism of analysts' post system reform on the thinking of judges.The analysis of accountability mechanism and judge's conservative thinking,selection mechanism and judge's competitive thinking is helpful to realize the positive interaction between judicial reform and judge's thinking.The digital case handling system can give full play to the supervision role of judges in the process of handling cases.In the current judicial practice,the supervision role even exceeds the auxiliary role.Due to the clarity and electronization of litigation materials,digital office system provides a very convenient condition for the operation of judicial system,such as judicial evaluation,performance appraisal,and "judge income".At the same time,the digital case handling system can realize the restriction and guidance of judges' thinking by prompting judges' thinking rules.Therefore,the digital case handling system can combine the constraints of judicial system and thinking rules at the same time,which is a comprehensive carrier to realize the thinking constraints of judges.The comprehensive application of digital case handling system in courts at all levels in China has a positive significance for the restraint of judges' thinking,and promotes the strengthening of judges' procedural thinking,making the case process more strict,the litigation materials more clear,and the deadline more timely.The "quasi codification" of legislative norms improves the retrieval efficiency and the comprehensiveness of legal discovery.The digital case handling system also plays a positive role in the application of legal interpretation,especially the system interpretation method.In addition,the digital case handling system can also guide the standardization of judgment reasons in judges' judgments.However,there are still some shortcomings in the digital case handling system,such as the increase of judicial cost,the psychological need of judges to accept the process and the risk of mechanical law enforcement,etc.,which need to be further optimized and improved,so as to promote the benign interaction with the judges' thinking.Judge's thinking is a kind of subjective activity with concealment.If it is not expressed in external form,it is difficult for others to see its true features.The judgment reason in the judgment document is the external expression of the judge's highly concentrated thinking.Changing the way of language expression will affect the way of thinking.Language and thinking are closely related to each other.By strengthening the interpretation and reasoning of judgment documents and promoting the standardization of judgment reasons,it is conducive to the restriction of judges' thinking.The purpose of strengthening the interpretation and reasoning includes clarifying the formation process and justification of the judgment conclusion,realizing the organic unity of legal effect and social effect,enhancing the fairness and transparency of the judgment behavior,limiting the arbitrariness of the discretion,enhancing the acceptability of the judgment,and enhancing the judicial credibility and authority.There are many problems in the interpretation of law and reasoning in China's judicial documents,for example,the interpretation of law simply lists the clauses,the content of reasoning is weak,the reason of judgment is inconsistent with the thinking process,and so on.In reasoning,we should pay attention to the context of persuasion,in which we should ignore the category of cases,pay attention to the legal discourse and ignore the daily discourse,and avoid improper rhetoric and excessive academic expression.