Research On The Influencing Factors On Judge's Trials

The legal problems such as non-acceptance of cases that are not specifically provided by the law, aggressiveness of judicial power, non-adequacy of reasoning in judicial decisions, among others, exist in the practice of our civil litigations.There are many reasons responsible for the production of these problems, one of which is the judge's traditional reasoning in our civil litigation which is characterized by the attention to the state governing and the negligence of service for the society, the attention to the result of litigations and the negligence of the process of litigations, the attention to the rule by the law and the negligence of the rule of the law, the influence of the research of natural science and political ideology and lack of legal independence, the denial of value evaluation and benefit measurement.The factors responsible for the formation of the judge's traditional reasoning in our .civil litigation, among others, are considered as followings: First of all, high centralization of state power and highly centralized planned economy had been established in China,since 1949. The state was trying to watch every inch of the society. Civil litigations were not considered as the platform on which to solvedisputes among citizens but as another instrument to effectively govern and control the society by the state; Second, in ancient China, state was not considered as the "public power" "above society" but as the naked conquer by one clan over another; and law was considered as the governing tool by kings; Third, our civil litigations had been influenced by the political ideology for a long time.With the development of our democracy and the market economy, the pluralistic benefits, values and ideas have made the judge's traditional reasoning in our civil litigation inconsistent with the time. Therefore, it must be changed to adjust to the requirements of the time.' The judge's new reasoning in civil litigations is characterized by the objective to service for the society, the standard of citizens' rights, the attention to due process, the respect for the independent function of civil jurisdiction and the fundamental content of sufficient reasoning and argumentation. It is also oriented by value evaluation and founded on benefit measurement. Value evaluation, benefit measurement and sufficient reasoning and argumentation are the core of the new reasoning.The satisfaction of human being's needs constitutes benefits. The measurement of different benefits and the evaluation based on their values are the two sides of the same coin. Benefit itself is a kind of value evaluation.Legal fundamentals (values) constitute the interior system of law. Objective criteria and right methods must be followed in the process of value evaluation and benefit measurement. Judicial decisions can be justified by value evaluation and benefit measurement, and value evaluation and benefit measurement pave the way for cases not specifically provided by the law. At the same time, evaluation and benefit measurement also exercise great influence on the shaping of civil facts.Although value evaluation and benefit measurement are formally subjective, they can also be argued by reason and their results can be tested by objective criteria.There are limitations to value evaluation and benefit measurement, and the requirement of "judged according to the law" cannot be violated.The handling of cases that are not specifically provided by the law will be watched in the perspective of the judge's new reasoning in civil litigations. Now that civil litigations are interacted by the civil procedural law and the civil substantial law, this question will be studied from both the aspect of procedure and the aspect of substance.First of all, because the right of access to litigation has the procedural function to lead a civil dispute to civil litigation and the judgment of necessity to legal remedy by means of value evaluation and benefit measurement can be included in one of the components of the concept of the right of access to litigation: necessity to bring lawsuits, the right of access to litigation is studied on all sides.Second, both under the current conditions of bringing a lawsuit and under the reformed conditions of bringing a lawsuit, the concept of necessity to bring lawsuits plays the key role both in the handling of cases that are not specifically provided by the law and in the protection of those growing-up rights. The concept of necessity to bring lawsuits is the key to lead demands of rights to civil trials.Third, the civil judicial methods and technology are discussed for the sake of the handling of cases that are not specifically provided by the law.. At last, the relevant case that took place in the practice is analyzed both to show the value evaluation and benefit measurement necessary to be done in the process of judging the necessity to bring lawsuits and to show the role played by the value evaluation and benefit measurement in the development of growing-up rights.