The Basic-level Judges' Erroneous Zones On The Judicial Idea And Its Correction

Since a long time, when the jurisprudential circle including 80% of judges from the national basic-level courts mention about the judicial idea, the modern"western type"judicial idea such as judicial neutrality, truth in law, judicial independence, judicial passivity, universal justice and so on have always been discussed. These ideas, being the spiritual achievements of the human's civilization on governing by law, should be pursued and enjoyed by the universe. However, even if these ideas have universal applicability at the same time, the realization way shall be allowed to"adjust a little"according to the different nations and regions. Chinese judicial idea must be understood on the basis of Chinese native resources, now there appears one kind of undesirable tendency, that is, whenever coming across the problems, the jurisprudential circle would like to judge China by the rule of"Miranda"and"Simpson", saying that this is unqualified and that falls short of the international convention. This kind of research, disregarding the difference between nations and paying no attention to the localization, has already brought negative effect to Chinese construction of government by law. The judges, working in the basic-level court and living in the"local society", shall set up"the Chinese type"of the judicial idea so as to resolve the legal problems appearing from the Chinese reality.The basic-level judges shall, in the judicial process, at least go out from the following four erroneous zones of the judicial ideas. Erroneous zone one: taking it for granted that the court can resolve all legal disputes. Prohibition of rejecting the judgment is one of the modern basic principles on governing by law, however, the present judicial environments, the social system and the political system of our country decide that the courts are impossible and have no ability to solve all legal disputes. Instead, the courts shall choose to reject some kind of cases. The courts shall pick up to accept the cases with both good legal effects and social effects, shall learn to avoid reasonably, and shall choose what to behave or what not to behave, evolving circuitously and gradually. When conditions are ripe, the scope of the cases accepted shall of course be responsibly expanded. Erroneous zone two: Laying undue stress on the judicial passivity. Although the judicial passivity is the judicial essential characteristic, it is the dialectical unification of the judicial initiative, these two principles always change according to the different environments. Some procedures emphasis passivity, but some procedures also need the judges to display the subjective initiative. Especially in the reforming time of China, when the legal consciousness, the economical and the political conditions are still immature, the judges cannot keep aloof just like western judges, instead, Chinese judges shall learn the doctrine of"the golden mean"and"going too far is as bad as not going far enough", and shall treat each litigant by an equitable, fair and virtuous heart. There is an interactive and cooperative relation between the judges and the litigants; the litigation is a task promoted jointly by both the judges and the litigants. Erroneous zone three: taking the principle of truth in law as judicial goal to pursue. Truth in law is the response of the objective truth; seeking truth in law is the only way when no way to go, however, it is the principle of pursuing the objective truth forever that constitutes the judicial aim. Although the basis of ruling the cases is truth in law, the goal of the case'adjudicating is to discover the objective truth. If these two principles conflict, we shall choose the objectively truth. This requires the judges to deal correctly with the relations between the litigants'adducing evidence and the judges'investigating and collecting the evidence; and the relations between applying the evidence rule in principle or in flexibility. Erroneous zone four: Having forgotten the most important ruling goal is for enforcement. The grand justice of Marshall overruled Marbury's prosecution in a great-circle, aiming at enabling the ruling to be enforced. In Chinese society with no modern consciousness of governing by law being set up, establishing the idea of the enforcement of the ruling is of practical significance and is the necessary way to enhance the judicial authority and to establish the belief of governing by law. This requests the judges to strengthen the mediation, fully display the power of discretion so as to put the three progresses of the registration, trial and enforcement together and to unify and achieve the ruling goal ultimately.