The Practical/Institutional Logic Of Criminal Judgments' Formation: The Investigation And Analysis Based On The Cases Defended For Innocence In Certain District Court

Though the Chinese criminal judgments' formation is theoretically discussed so much, however, there is still no any theory with adequately persuasive explanation and narration yet. Having necessarily switched the concept about law/social analysis tools in the circle of western theory, treated the court (the judge) as an actor with his own interests, referred to the legal structure advocated by the legal formalism, the power structure posted by the legal instrumentalism, the judges' conscience & freedom drummed up by natural law, irrational factor described by realistic law and so on, regarded the court, a political &social" action unit " as the center, applied the political sociology, unit sociology and latest achievement in system research, this paper commits a theory analysis on the formation logic of criminal court judgment.The article will point out, on one hand, the forming of China's criminal judgment, embody no ideology which reflects the legal formalism, and followed no reasoning line of legal instrumentalism either, and even was not the results of judge's transcendent sense of justice or concrete individualized practice, but the consequence that the judges take kinds of continuous collusion, socialization and even resistance encircling the court's mass existence (Including the judge's individual existence), under the mulriple pressure from formalized word ruled bylaw, gleaming power technology and fuzzy mass moral/right appeal; On the other hand, because of the long-term practical operation, the above-mentioned practical skills took by the judge encircling the court's mass existence(Including the judge's individual existence), have gradually form a disposition tendency. It is this disposition that makes the formation logic of criminal court judgment to be possessed in the continuation and stability of a certain degree, and to have a certain institutionalized character.The analysis of this text is based on the factual investigation about the judgment of innocence-defended case from a district court. The court we choose is neither a court with a heap of problems nor a court so-called "exemplar", but more a court in normality and then belong to the "inconspicuous majority". During our investigation into that court, we applied both the methods of anthropology and sociology. Our investigation is mainly depended on the reading of the dossier and personal interview, accompanied by literature collecting and questionnaire. Through our investigation, we get to know these facts: First, the facts and the law disputed by both parties in the innocence-defended case; second, the exterior structural factors which affect the formation of the court judgment; third, what factors possess the central position in the formation of the judges' final decision and then determine the logic of the judgment; fourth, the formation process system of court judgment in the practice. Through this investigation, and with the related angle of view, we hope to propose an elementary explanation and narration about the formation logic of Chinese criminal court judgments from some profile.Based on the understanding and analyzing the roughly appearance of practical& institutional logic of the judgment formation of Chinese criminal court, this text makes an elementary discussion on the influence to the reform of procedural system caused by that logic, and simply proposes a suggestion practical& institutional logic of the judgment formation founded on the academicnot the legislatorial stand.