A Research On The Anti-Formal Of Chinese Justice

Xu Ting case reflects the occurrence of many aspects of the rule of law of China. After the case was whether a crime for Xu Ting, what kind of crimes committed due to his problems with sentencing,All these have aroused heated debate. In this paper, I will first analyze the behavior of Xu Ting, introduce and comment Max·Weber's formal rationality of legal theory, Propose development direction of the rule of law of China, study the problems reflected with the case, These problems include:judicial and public opinion, media and other political powers.This article argues that Xu Ting's conduct was not belonged to unjust enrichment of civil law. It violated the thefting of financial institutions of Chinese criminal law, and in a huge amount. Therefore, Xu Ting's original trial was no problem in legitimacy. But the retrial violated of formal rationality that under the pressure of public opinion.Weber considered that the law of formal rationality is a highly predictable system of legal norms,It wiped away all nonessential variable factors of accidents, such as morality, ethics, customs, etc, Whereby the law would be a technical specification. Weber held that the principles of capitalist economy and forms of attention. This legal type is consistent with the development of the capitalist economy. It promoted the development of capitalist economy.However, rational form of law has its drawbacks. It concerned only whether the behavior was accordance with the law. Therefore, the consequences will have great importance in the form, but underestimate the real. The law becomes a completely closed system. The legal system ruled out recourse to the law of any other external standard test itself. It is not concerned about people's life experience. It is not concerned that people's appeal for moral. It lost its own mechanisms and beyond the capacity of self-criticism. At the same time, the law has the characteristic of lag. With the progress of modern society, technological development, there is a lot of things lawmakers can not think. Legislators could not formulate an overarching legal case against any out of the legal system. There are always some cases that cause the vacuum of the law. In addition, Weber's formal rationality of legal has been criticized due to ignore the judge's initiative. Lawyers who as a social sense inevitably have their own unique personalities and the political, moral values, this makes the application of the law may well change with time due to people. Xu Ting's case also shows among these many controversial that application of the law is not as simple as vending machines to buy things, judges settle a lawsuit as a direct and natural sciences with different sets of equations. The use of the law will involve a judge's personal experience, values, etc. This process will require judges to play their own initiative.Although Weber's formal rationality of legal has some defects,but its functions are greater than the negative features. Therefore, we should still adhere to the rule of law in the form of rational. In China, Public opinion, media and other political powers and so become major factors in the anti-formal judicial.In our process of building the rule of law, these factors will may be positive functions. But we can get enlightenment from the Xu Ting case, these factors must be allowed to track the rule of law under the supervision of the judiciary to play their role of promoting the advancement of the rule of law of China, Otherwise, they will play a negative impact on the rule of law of China.