Judicial Adjudication And The Social Effect

The Supreme People’s Court of PRC explicitly requires that the judge must considerthe social effects in the referee. The unity of legal effect and social effect turn into ajudicial policy in current China. And its scope from special civil and commercial casesextended to the general judicial field. Through the study of relevant norms of the SupremeCourt we can found that the official in the pursuit of social effect consists mainly of"serving the overall situation","educating the masses ","concluding the case, contentingthe litigants and preventing litigation" and "social acceptance" etc. There are twoapproaches to demonstrate the judicial policy which are universalism and particularism. Inorder to implement this judicial policy, the court has taken the following initiatives:correction and enlightenment justice, service-oriented justice, flexible justice and theestablishment of social effect assessment mechanism. Despite its best intentions, thisjudicial policy has produced multiple difficulties in practice. It has exacerbated the crisis ofthe politicization of the judiciary, deviated from the true cause of the justice and softenedthe rule of law. The realistic dilemma urges us to rethink the judicial policy’s legitimacy.This judicial policy has caused judicial dislocation in terms of value target, functionorientation and the referee method etc. Therefore, in the new round of judicial reform, weshould reform from the bottom. Specifically speaking, in the value goals, we should adhereto the priority of formal justice; in the function orientation, we should stick to the priorityof rule of law; in the judging method, we should stick to the priority of normativeconsiderations. Only through reducing the burden to the justice, can the judicial branchfunction better; also is the correct road to Chinese law construction.