On The Modernization Of Chinese Judge's Mode Of Thinking

The enforcement of laws must be promoted through the procedure of adjudication, and expressed by the judge's specific judgment. The judge's mode of thinking is the spirit of his career and the foundation for the particularity of his career. The actual judicial actions of Chinese judges are in urgent need of further exploration of the judges'rules of thinking, so as to improve their consciousness of legal thinking. The main opinions in this paper are as follows: (1) Nowadays, the judge's mode of thinking is the most typical legal thinking; (2) Chinese judge's traditional mode of thinking has its own characteristics; (3) The approaches for the modernization of Chinese judge's mode of thinking. Through the discussion of these three basic opinions, this paper tries to explain that Chinese judge's traditional mode of thinking should be modernized. Chapter one mainly talks about the concept, characteristics, and composing factors of modern judge's mode of thinking. The rule of law is essentially a mode of thinking, and the formation of legal thinking symbolizes the progress of the rule of law. The judge's mode of thinking is a kind of legal thinking. As the most typical representative of the legal career, the judge must take legal thinking as his basic mode of thinking, and cannot stress politics, economic benefit and morality by deviating from legitimacy. The judge's mode of thinking is a thinking, which protects the rule of law. It is gradually formed in long-term judicial practices. And it is a thinking set to analyze and identify legal problems through the utility of legal methods according to legal procedure. The only way to get a good command of this system of technical knowledge is to take part in some special learning, training and practices for a long period of time. The adjudicative role played by the judge in judicial activities determines the typicality of his mode of thinking. The judge's mode of thinking is different from those of other legal workers. And it is characterized by independence, identification, procedure, regularity, formalization and rationality. The judge's thinking and judgment of legal problems is not only to observe, understand and solve problems from the legal point of view, but mainly to do these according to legal rules of thinking, techniques of deduction and the method of demonstration. The judge's mode of thinking is composed of legal believes, legal knowledge, legal method, legal procedure and so on. In modern society, the judge's mode of thinking is not only the obedience to the accumulation of legal knowledge and legal procedure, but also the better utility of legal methods and the perfection of legal believes. Chapter two mainly discusses the characteristics, the causes of formation and the advantages and disadvantages of Chinese judge's traditional mode of thinking. The 5000 years'traditional Chinese culture influences modern people's thinking and behaviors. The judge's mode of thinking is a mode of thinking formed through practices. And its changes must have be en influenced by the predecessors'mode of thinking and humanistic cultural tradition. The stereotypes of thinking greatly hinders the modernization of Chinese judge's mode of thinking. Chinese judge's traditional mode of thinking is a civilian thinking, which pursues the essential aims and despises formal procedures. It mainly manifests that the judge emphasizes the content, aims and results of laws and despises the form, methods and procedures of law. It also manifests that the emphasis on the ideology of legal activities and facts beyond law and the disregard for the technical forms of legal activities and the logic within laws. The moral criterion for judicature is the main stream of Chinese mode of thinking both in the past and in recent times. This criterion rejects the judge's mode of thinking led by modern judicial ideas. Traditional Chinese judge's mode of thinking is the unified result of Chinese pan-theoretic mode of thinking, pan-political mode of thinking and modern instrumentalism of procedures. Inmodern China there is the tendency to reject this traditional mode of thinking, while in western society some necessities arise. Some parts of this mode of thinking can be seasoned with the need of modern society, but its harmfulness to Chinese rule of law is greater. Chapter three explains the approaches to the modernization of Chinese judge's mode of thinking. Along with the modernization of the traditional society, Chinese legal system also faces a process of transformation from the traditional model to a modern one. The modernization of the mode of thinking for the community of the legal career is one of the marks of modern Chinese legal society. The nucleus for this modernization is the modernization of the judge's mode of thinking. The basic orientation of Chinese judge's mode of thinking is based on the unified judicial techniques. The formation of the unified orientation of thinking is to pursue the foundation for legal cognitive activities, so as to eventually realize the aims of laws: justice, kindheartedness and values in human society. The improvement of the modernization of Chinese judge's mode of thinking is mainly to be achieved through the cultivation of the judge's legal ideas, the learning of legal knowledge, the training of judicial techniques and other approaches. For the cultivation of the judge's legal ideas, first of all, the judge should understand the connotation of legal ideas systematically and comprehensively; secondly, the judge should constantly further his understanding of legal ideas in judicial practices; thirdly, modern legal ideas should be cultivated in the whole society and the judicial authority should also be established. As to the improvement of the judge's expertise, firstly, the judge should have a good command of legal theories; secondly, the judge should pay attention to the opinions and tendency of jurisprudence; thirdly, the judge should constantly renew and supplement his legal knowledge through judicial practices. For the improvement of judicial techniques, firstly, the common education of legal colleges, the judge's on-the-job training, the study on expertise and other educational training should be reinforced;secondly, the judge's legal mode of thinking and the profundity of his understanding of legal methods should be enriched and improved through judicial practices; thirdly, the judge's judicial techniques should be enhanced with the help of the outside world of laws. In the end of the 20th century, Chinese judge's status and role have been changed greatly. They gradually become the "heroes"in this era. And they maintain legal justice and the aims of the rule of law by way of special knowledge system, particular legal techniques and universal sense of social justice and other mode of thinking. The fire of justice is in their hands and the flame is especially dazzling.