Observation About Several Problems Of Hard Case

The problem of hard case has always been a focus point in the aspect of theory of law and legal philosophy. There’re a lot of academic conflicts around it, but they can’t draw a common conclusion. By reading a large amount of documents and collecting the related materials, I have some reflection about it. Through communicating and discussing with my mentor, I choose it as my topic of master’s thesis.This article has divided into three chapters. The first chapter is the definition of the hard case. If we want to discuss the problem of hard case, first of all we should make the definition about the hard case. In fact, it’s not easy to define the hard case, for there’s no clear standard to classify it. A lot of controversies have been raised about it and different scholars give different definitions. For example, “If it’s hard to define some kind of cases, or it’s hard to find the exact solution, or the social public can’t reach a common sense about it, then those kinds of cases can be seen as hard case.” This definition is set from the angle of the application of laws. Some scholars emphasizes on the difference of “hard case in the law” and “hard case in the fact”. Here, I try a new method to define it. My thinking is that, since the cases in the modern society are either the simple case or the hard case, then I can use the way of comparison. That is, the case which is contrast to the simple case is the hard case. Let’s get more specific, I define the hard case in the several below ways, which can be summed as the aspect of the fact of the case, the way to apply the law and the social reaction to the judgment. As to the fact of the case, the simple case has clear fact while the hard case has complicated fact. As is known to us all, the “Peng Yu Case” is a hard case due to the unclear fact. And many facts of this case had disappeared and are hard to find out. This leads to the confusion of the judge. Together with some other reasons, the fact of this case has finally become impossible to find. To the application of law, the simple case is easy and clear for the application of law, while the hard case can’t find the exact law to handle it. As to the case I mentioned in the essay, during the development of the commercial housing, whether the removed house owners should be compensated is not ruled in the law. Then the judge may be embarrassed to find no law to depend on. Thus, the unclear of the application of the law is another feature of the hard case. To the social reflection of the judgment, the simple case won’t raise much controversy around it, but when it comes to the hard case, it’s not this easy. Let’s take the “Peng Yu Case” as an example. The judge considered too many factors, such as moral, made it catch too much attention. Some media even claimed that this case would lead the moral level of Chinese modern society to a serious fall back. So this is another feature of the hard case. Besides, some cases have the simple fact and they’re easy to find the law to apply to them, they are still another kind of hard case. I call them implicit hard case. These cases include the phenomenon of “same life, different compensation”. The appearance of these cases can be summed up to the simple one-size-fits-all thought of the legislators. They will still do harm to the society. And I think these kinds of cases are also hard cases.The second chapter is the cause of the hard case. In the first part, in the history of the legal philosophy, many scholars have studied the hard case. To the cause of it, different scholars give different words. The most famous debate about it is definitely the debate between Hart and Dworkin. The ‘open texture’ theory raised by Hart suggested that the law itself has the open texture. So it’s inevitable for the appearance of the hard case. It should only depend on the discretionary power of the judge in order to manage it. But Dworkin shared the opposite opinion. He deemed that the law is integrated, the only work for the judge is to find the exact law to cope with the case. And only this process is hard for the judge. Although the process lasted for a long time, no exact conclusion was set. In the reality of our country, it’s reasonable for the existence of the hard case. First of all, the legal system is rigid and lagging. As is known to us all, to maintain the stability of the law, it’s necessary to keep the legal system. But the inevitable rigidness and lag of it makes it fail to chase the rapid growth of the society. Then the hard case occurs for no reason. I use a case to make it clear. That is the “First Chinese Online Virtual Asset Case”. As the rapid development of the web, online games occur along with it. Many online games rule that the gamer can get the better equipment by reaching the higher level. Or he can buy the equipment by money. To those who buy the equipment, once the equipment is stolen, what can they do? Since no laws have been set to regulate this area, the judge and the gamer can’t find the law to apply together. And this is the result of the overestimating of the stability of the law. The second is the conflict of the legal departments. In our country, the law exists by several departments, which is easy for the application of the law for the judge. But the gap between the departments is so wide that some cases fall in the interval of legal departments. No law can be used to deal with them. Or different laws can both be applied to them, which lead to different results. I give an example of the different rules of the “factual marriage” in the civil law and the criminal law. The other reasons can’t be attributed to the law. Sometimes the social conflict or the different attitudes of the citizen towards value make the hard case occur. We can see it clearly in the process of choosing the site of refuse landfill. It triggers heated debate in the society, for no law reasons but the existence of the objective social contradiction. No matter where it builds, it will affect the local residents. And this may also lead to the occurrence of the hard case.The third chapter is the solution to the hard case. I divide them into two different parts. That is the judicial solution and the other solution. The most important aspect is to emphasize the character of the judge. By making the judgments, the judge solves the controversies and maintains the stability of the society, in order to ensure the society develop in a reasonable way. The judicial solution contains several fields, first is the reasonable legal application of the judges. When facing the hard case, the judges should be activated to deal with the case. But that does not mean the judges to make the law casually. The judges should always obey the law when judge the exact case, and they need to show the initiative and creativity when dealing with the cases. Specifically, the judges should initiatively take part in the process of mediation and initiatively make the judging process public. The second is the interpretation of the law. The law can’t be exactly used to cope with every single case in reality. Then it’s necessary to interpreting the law, as to the hard case, the judge should explain the new problems occurred in the judicial practice. This may help the public know the law better. For the judge, they will be more concentrated on the legal reason of the case. The third is the emphasis of the judicial precedent. The judicial precedent can help to complete and develop the statute law, while lead new legal doctrines into the statute law, then make the law able to meet the social need. The fourth is the allowance of the objection in the verdict. This is very necessary, for it won’t decline the effect of the verdict. On the opposite, it will make the public get a full understanding of the case, and make the judges to focus on the reason of the judgment. The other solution contains some aspects, which are the elimination of the lag of the law through the legislation. It mainly includes clarifying the authority of the legislators and the judicial interpretation, and the compensation of the leap of the legal words. The other solution is the use of social integration to solve the problem of hard case, including the split of the cases. This means to handle the hard case to the exact court, which can save the judicial resources, and meet the judicial need of the hard case in reality.