A Jurisprudence Thinking About The Judicial Tradition Of "Qing Fa Liang Jin"

"Qing Fa Liang Jin" was an important and inherent word of the Chinese justice tradition. In the traditional Chinese judicial determinations, "Qing" had four major meanings:the common human feelings, the affairs related interest, the traditional code of conduct and the facts and circumstances of a case, which mainly included two meanings for the facts and the rules. In the traditional Chinese judicial practice, "Fa" was a diversified comprehensive system, which not only included the state law and case system, but also included the "Li" system and its customs, and even included the "Qing", "Li" and "Fa". As a result, "Qing" and "Fa" in the traditional Chinese justice practice shared the same high degree of uncertainty. The relationship between "Qing" and "Fa" contained the unique temperament of the traditional Chinese legal culture, which was "two and both" and "whole and two".With the Confucian orthodox legal thought as ideological foundation, the Confucian ethics as normative premise, the administrative and judicial united as institutional environment, the judges both professional and Confucian feelings as operational body, the Confucian mean legal thinking as thinking logic, and the "Fa could not out of Qing" ideology as cultural soil, "Qing Fa Liang Jin" became a natural method in the traditional Chinese judicial practice. The "Qing Fa Liang Jin" judicial method could also share the same legal argument logic clue with the modern legal reasoning. But due to the respecting, introducing and considering of "Qing", "Qing Fa Liang Jin" judicial method could handle and disputes more judicial problems, and had a more substantial level of methodological significance. Compared with the pure referee syllogism reasoning, "Qing Fa Liang Jin" judicial method could enhance the rationality and acceptability of the judgment.The essence of the "Qing Fa Liang Jin" judicial skill was the governance measures that the grassroots judicial officials who on the responsibilities of grassroots governance and social control guided by the enforcement and judicial idea, the foundation of legal norms, the power structure model and ability accomplishment, the logical thinking habit and the concept of the public law and such multiple factors, then faced to the problem of solving disputes at the grass-roots level and practical management needs, and subjected to the management resources, management ability, management means and management environment, management target and such multiple elements, and finally according to their own reason and experience to making the practical judgment seemed beyond the law, but showed attention on both "Qing" and "Fa". "Qing Fa Liang Jin" judicial skill had an limited using range, which not only could not much beyond the statutes system range, but also should have a result that of peaceful and harmonious governance effect.The "Qing Fa Liang Jin" judicial tradition had a consistency history, but as the way to solve the problem of "Qing" and "Fa", it also had a fair degree of Chinese characteristics. "Qing Fa Liang Jin" was the Chinese "interest measurement", but it should not be the substitution of "interest measurement", and the "interest measurement" should not be the digestion method of "Qing Fa Liang Jin". If from a broader governance perspective and practical to perspective, "Qing Fa Liang Jin" judicial tradition contained the dissolve the Chinese traditional wisdom to construct the good order of. Although "Qing Fa Liang Jin" was nearly history, but still had important significance to contemporary Chinese judicial practice.