| This paper selects the criminal reconciliation as the research sample,trying to explain the "where it comes from" from the perspective of culture-investigating the pedigree of criminal reconciliation,including the horizontal comparison with foreign countries and the local historical investigation;"What is criminal reconciliation"--including the ontology of criminal reconciliation and the actual operation at present;"Why" of criminal reconciliation--including multi-dimensional explanation of the causes and lasting vitality of criminal reconciliation from the perspective of culture,and why culture has become an interactive force of the system.Before the institutionalization of criminal reconciliation,it experienced a judicial practice process of official exploration.The reason why the civil "private settlement" widely existed and the official judicial practice was explored by documents was that when dealing with some criminal cases,good legal and social effects could not be achieved because of the inability or defects of the application of the law,and the civil paradigm showed strong functionality,which became the practical basis of criminal reconciliation.Therefore,the emergence of China’s criminal reconciliation practice is not a real institutional innovation,nor is it a "plea bargain" directly transplanted from abroad,but an individual and informal phenomenon that has always existed in criminal judicial practice.In China,there is often a gap between the folk reality and the official discourse,especially in the criminal justice field.Because of the absolute authority of public power,the interests of other subjects(especially the perpetrators and victims)are ignored,and even the legal adjustment cannot be made.The core survival logic of the legal system lies in maximizing the consideration and taking care of the balance of interests and game results among the subjects.Then,this logic of existence can be explained from the perspective of culture,in addition to the needs of reality.As far as local resources are concerned,the revival of criminal reconciliation in the contemporary era was originally a way of settling disputes by "reconciliation" which originated from the people.According to the legal logic of formal rationality,this folk norm is not allowed by the national law,so it is not justified and legitimate.However,in China’s traditional legal culture,the legal sources of settling disputes and conflicts,such as emotion,reason and law,are diverse,as are the procedures of official trial and civil mediation,which are both contradictory and coexisting.This is the multi-valued logic of Chinese law.Under this logic framework,the state institutionalizes criminal reconciliation,and the institutionalized criminal reconciliation passes through individual cases in the operation of judicial practice.It has an impact on the judiciary,the parties and the community/society.With the development of the depth and breadth of this impact,a new legal view is gradually formed.For example,people will realize that when a crime happens,it will no longer be simply a mode of punishment by the state using judicial power.Individuals also have the right to participate in it,and even realize that personal participation may play a positive role in the recovery of the community or social order,thus establishing a new social value/culture.This may be expected.At the same time,even in the global context,this mode of dispute settlement is not unique to China.In any ethnic group and any historical stage,"reconciliation" is a kind of gentle dispute resolution method that people pursue.For example,restorative justice is widely used in many countries’ formal and informal systems,and the way of reaching reconciliation to restore the damaged order is a proof.In this sense,this paradigm of dispute resolution actually has certain universality.The definition of "cultural interpretation" in this paper includes two aspects: first,culture is used as a method in this paper.Put the criminal reconciliation in a broad historical and realistic background,and observe the evolution history of criminal reconciliation with culture,so as to prove that a system corresponding to it can be generated in a culture.Secondly,cultural interpretation is not the dynamic influence of culture and institution as two isolated and static fields.Besides having their own domain,culture and system can also "break the circle",thus forming a new culture of interaction,and this new culture is a constantly updated state.Therefore,the "cultural interpretation" in this paper refers to a dynamic presentation and expression which is constantly updated by the interaction between culture and the already occurring phenomenon or the already formed system(criminal reconciliation).This presentation and expression has its own system,otherwise it is difficult to be self-consistent.The systematicness of cultural interpretation is divided into core driving system and subsystem.The core system refers to the culture composed of a whole set of organic components,including philosophy,economics,sociology,political science and even aesthetics,and this culture,which contains all the above elements,acts on criminal reconciliation,which is the explanatory power of culture to criminal reconciliation.The so-called subsystem is two important tributaries under the framework of big culture: official culture(or big tradition/expression)and folk culture(or small tradition/practice).These two branch cultures present a kind of combination and deviation in the field of criminal reconciliation,namely "the third field".Therefore,the cultural interpretation of criminal reconciliation is bound to be related to the above-mentioned big cultural system and branch cultural system.It is through observing the interaction between criminal reconciliation and these cultures that the growth and development,ups and downs and revival of criminal reconciliation can be explained more clearly.The theoretical presupposition of this paper is that all institutions can be explained by culture,and there is a profound and complex interaction between culture and institutions,which is described in this research as "the dynamic interaction between culture and institutions".The article attempts to explain the full meaning of criminal reconciliation in terms of culture neutrally,in order to understand how law can establish and maintain a meaningful world in the interaction with culture. |
