The Subjective Initiative Of Judges In Hard Case

Hard cases mainly refer to the case which have clearly no doubt facts, but there is noclear law may apply, or will be directly applicable to cases arising unconscionable situation.At the time when the occasion of judicial reform, many difficult cases arising in thecommunity caused widespread concern and also attracted a lot of theoretical discussion.Outcome of the trial of such cases, often lead to many disputes. This paper is from resultsof trial to analysis the role of judges in difficult cases and whether it should be and how to giveplay to the subjective initiative of the problem.Generally, people have generally believed that only a judge strictly according to law, canmake sure justice be done. However, in difficult cases, if you just follow the " strictly accordingto law " principle it’s not necessarily able to achieve results in line with public expectations, aswell as possible to get evaluated " machinery of justice". This article try to analysis the " XuTing Case" and Guangxi "Tour pal case case " that appeared in the Chinese judicialpractice and caused a lot of controversy.And combines some theoretical analysis to explore, soas to discuss the judge how to play initiative issues in difficult cases.In order to better analyze the problem, this paper discusses the causes of difficult cases.These are no doubt the reasons result in the difficult cases: the contradiction between legalstability and cultural development of social, the change of language; the contradiction betweenabstraction and universality of law and particularity facts of the case. Of course, the root causelies in difficult cases is legal uncertainty.Analysis of the causes of difficult cases, more important is to discuss and solve the difficultcase, which is the focus of this article. For the two cases, there are a lot of theoreticalanalysis, but this is only from the "mechanical justice" and the use of opposing itsown discretion analysis. This article is starting from the case, combined with the analysis of twocases of the outcome of the trial, demonstrated in difficult trial, the judge to give play to thesubjective initiative and flexible application of laws and the interpretation of law, choice oflaw, legal loopholes and other methods, the necessity to solve difficult cases is actually a "lawmaking" methods. As Hooke said,"the judge must often choose: either follow the legislator’swill, and make not fully or unfair judgement, or to make a full and fair judgment, and will ignore the legislator’s will abandon". At the same time, also demonstrates the processof judges play subjective initiative to solve difficult cases, and will not affectthe objectivity, judicial certainty, legitimacy. This phenomenon is not saying the firm canproduce only appear wrong, can cause the right argument any kind of conclusion. In thelaw and judicial is not under the guise of a few legal occupation, to personal favoritism foistone’s opinions upon others power control.Of course, the appropriateness of judges play subjective initiative are alsodiscussed. For difficult cases, although the need to solve the judges play subjective initiativeto better, but play the subjective initiative behavior due to the discretion of the judge needsto have certain limitations, to comply with the legal principle and legal spirit. The judge shouldbe encouraged to pursue legal social value maximization as the goal, to rely on their ownindependent judgment, sufficient, reasonable use of discretion.