Study Of Judge Thinking

The "legal person" draws up and implements the law.Among the "legal person", the judge is a group who links with the rule of law most closely.The judge connects the disputes with the law by justice (law applicable) and deals with any contradiction between the two. In judicial practice of China, the judge thinking determines the rationality and the legitimacy of judicial decisions largely, and can reflects the impartiality of the judicial system, thereby affects the progress of China's legal system.The judge thinking's concept, characteristic and structure were illustrated at the start of this document;Then the constraints of the judge thinking were analyzed in the empirical point of view (the external constraints and the internal (system) constraints were put forward); The basic methods of the judge thinking were stated in the view of the rules and the principles. In the last of this document, the professionalization and the independence were proposed to perfect the judge thinking. Long words:Chapter I:the basic analytic of the judge thinking. From "thinking" to "legal thinking" (way) and then to "the judge thinking", the concept of the judge thinking was cleared; Viewing judges'status and judicial function, the four characteristics of the judge thinking were listed; The three elements of the judge thinking were put forward; It made a distinction between the judge thinking and other legal person (legislator, lawyer, prosecutor, jurist and administrative law enforcement) thinking.Chapter II:the external constraints of the judge thinking. This chapter includes four aspects:personal factors, economic considerations, political considerations and legal education.For each one, the implication or the status of constraints was clarified at first, and then the external constraints'influence and role were analyzed.Chapter III:the internal constraints of the judge thinking. The study of the judge thinking was transferred from the "human" level to the "system" level:On the one hand, many features of the traditional judge thinking of Chinese are inherited inevitably in today's judicial practice; On the other hand, there are specific defects——the localization of judicial system, a variety of weak or strong oversight, the management and administration of the courts and the non-professional of judges in today's judicial system. These specific defects affect the independent of the judge thinking and are detrimental to justice.Chapter IV:the specific ways of the judge thinking.The judges use mainly the syllogism mode of thinking to treat the rule of law, and think it is important to master three basic methods (legal discovery, legal interpretation and legal argument)at the same time.The three basic methods and the syllogism mode of thinking are the judge thinking's entirety;The judges also think it is important to understand the effectiveness of legal principles to deal with the legal principles.Chapter V:the improvement of the judge thinking.This chapter includes two aspects:the optimization of professional of the judge thinking and the improvement of independence of the judge system.The former mainly includes:the elite education, the improvement of the selection system of judges,the improvement of judicial skills and the establishment of professional security system; The latter mainly includes:the removal of the administration of justice, the transition of the NPC'supervision methods of the administration of justice and the rationalization of the relationship between the party and the justice.