| The formation of China’s socialist legal system means that the judicial practice is faced with the reality of the transformation between official discourse and folk discourse,private discourse and public discourse.As a result,the theoretical and practical circles have always paid special attention to the judicial practice,especially the rule of law in the operation of the court,and studied the judicial operation at the grass-roots level from different paths.Traditional problem-oriented research forms problem-oriented countermeasures,which tend to focus on the unbalanced state of local improvement.The normative-practical research focuses on the normalization of justice and the correction of behaviors which deviate from the rule of law,emphasizes the mechanism guarantee for standard operation.The study of the state-society perspective puts the law in the context of governance,but easily ignoring the problem of normalization of the rule of law.The diversification of research paths reflects the diversification of research methods.As a practice of legal system,court operation should return to the specific scene of rule of law.The operation of the court emphasize that the subjects(courts and judges)in the judicial field realize the function of the system and the legal interpretation,through the recognition and application of the procedure.Based on these above,to further clarify the practice of“interpretation and unification”of grass-roots judicial activities,this paper regards the Z County Court as the field to reflect the judicial logic of it,by observing the process of the dossier application in it,This paper takes the structure and the text of dossier as the framework of research,starts with the perspective of the people and the organization in the action,and reflects the procedure of the judicial operation of the Z County Court through the dossier application.It tests and analyzes the process of the judicial operation of the Z County Court from four levels: the dossier application at the filing stage,the dossier application at the trial stage,the deviation between the dossier application and the norm in the litigation process,and the dependency of dossier in the operation of the court.This paper believes that in the application of structure and the text of dossier,the text and the system realize the legality of the judicial activities through the textualized management method,however,it aggravate the phenomenon of the deviation between the dossier application and the norm in litigation activities as well as the bureaucratic function of dossier in the court management.So the Z County Court has the operational logic that the practice deviating from the text and the system.To response this dilemma,this paper proposes the normalization of the dossier application and further attaining the legalization in operation of the court.In terms of the structure and contents of this paper,it consists of introduction,body and conclusion,in which the body includes four chapters.The introduction part starts from the reason why analyzing the logic of the operation of court in the perspective of the dossier application,points out that the application of court dossier is just defined as "dossier-centricism",which with cognitive biases and limitations,and does not distinguish the court organization from other bureaucratic organization that rely on the operation of textual process.Simultaneously,most of researches about the dossier focus on discussing the form of the dossier such as the writing and the formatting of the text,to find the problem mainly from the textual form.The research paradigm for the operation of the court is mostly focused on the perspectives like structure-institution,norm-practice,state-society,and so on.By introducing the structure and text of dossier,this paper establishes a research scope which not only has institutional value on the structure,but also has procedural value on the text,within the structure-system,norm-process and nation-society perspective of research.And by entering the field of dossier and court,analyzing the role,the organization and the norm,to describe the application process of the case file in the court,and to mine the operational logic of the court based on the dossier application.The first chapter describes the dossier application at the filing stage,highlighting the judicial image of "constraint","neutrality" and "impartiality" shaped by the court.By observing the ecology of the various case filing in Case Filing Chamber of the Z County People’s Court,the court’s legal reform and legal confirmation to the text of the indictment indicates that the court-led text formatting is the main way for the court’s dossier application in the litigation system.There are two ways to reform the dispute or normatively perform the right of appeal: one is to format the dispute,the other is to textualize the dispute.The litigant’s action from the outside to the right of appeal generates the intervention of power,so the court should try to restore the image of neutrality and reduce the suppression of the case through "compressed and modest character".The application of the text at the filing stage will present the court’s judicial image of "constraint","neutrality" and "impartiality" to the parties,which is an activity that reflects the concept of the "curtain of ignorance" in judicial activities.The second chapter,by observing the related activities of “the dossier application at the trial stage”,presents that the court proceeding is an activity based on the dossier structure and promoted by the build order of dossier text which stipulated in the procedural law.The circulation of the dossier in various departments of the court is a way to maintain the court’s neutral and impartial judicial image through the ordinal judicial activities which generate the text,and also a means of shaping the authority of the trial.By observing the process of dossier application in the trial procedure of the Z County Court,it implements activities of the organizational trial through the structure and text of dossier.The final construction of the dossier structure is realized by the behavior of the subjects,the judges and the parties are the main subjects of the dossier application,but controlling the structure and text of dossier is still an operation of state judicial power.Through the division,the enacting of judges’ status and roles,the exertion of judicial power around the trial mechanism,the parties’ control of the fact by the text,and the trial scene for the court’s control of procedure and substantiality by the text,formally,those are close to the process of the dossier structure.However,there are various "structural variables" in the judiciary that make practice deviate from the text and practice departs from the system.The third chapter defines the logic of the dossier application in court proceedings as “ the deviation between the dossier application and the norm in the litigation process”.The litigation process of the dossier application reflects the judicial process that the practice deviates from the text and departures from the system.In criminal proceedings,due to the status of the national criminal prosecution agency between China’s courts and the three judicial organs,the criminal procedure lacks the judicial logic of applying the rules of evidence.The proposition of the trial-centrism has structural obstacles.In civil litigation,the Z County Court handles the cases in high mediation rate and low jury rate,the judge has personal experience of mediation,and the social structure of the case affects the way to resolve the dispute.There is increasing emphasis on multipartite mediation,multi-mechanism linkage mediation,and even the coordination between courts mediation in the settlement mechanism of the civil case of the Z County Court.All those lead to the risk of further decline in the litigation value of the dossier,and exacerbate the weakening in the function of dossier.The fourth chapter starts from the holistic perspective of the court operation,to observe the main means to achieve bureaucratic function is to implement “ the management of dossier and the dependence of text ”.Through forming the system-compliant original file and controlling mechanism of sub-volume of the case,the court covers the text-dependent mechanism in the sub-volume with the program order of original file.The dependence of dossier also occurs in the management activities carried out by the court through the dossier.According to the aspects of the judicial activities verified by dossier and the management of text,the case-dependent mechanism operated by the court causes the organizational operation of the court failed to play the functional value of the organization,which adds the management value,but erodes the judicial value of the dossier application.The conclusion part indicates that a judicial phenomenon of the practice-text dual structure exists in the operation of the Z county grass-roots court.It is also found that the judicial processes,the results of interest-related litigation,and the order of management exist in the court operation.But the procedures of the rule of law,the function of the judiciary,and the order of the rule of law are relatively weak performance.There is a risk to generate an illusion of legal awareness community,by embedding the system into the text,with the practice deviating from the text in judicial operation.The conclusion suggests that the normalized dossier application is an approach for the rule of law in China’s courts.From the perspective of the dossier,considering a background and a demand of the rule of law in China,this paper puts forward the tentative idea of normalization of the dossier application. |
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