The Judicial Decision Of Hard Cases

Hard cases refer to that the facts of the case are not clear and the allocation of the burden of proof in the proceedings is controversial or the facts of the case are clear, but there is a dispute over the application of the law. Hard cases are divided into two types, namely the hard cases in facts and the hard cases in law. The hard cases in facts refer to that the facts of the case are not clear and the allocation of the burden of proof in the proceedings is controversial. The hard cases in law refer to that the facts of the case are clear, but there is a dispute over the application of the law(e.g.) no applicable rule of law, conflict of law, a decision made under the existing rules being unfair and unjust.For the hard cases in facts, judges can use the judicial technology to solve. The judicial technology includes not only the technology of legal economics, legal argumentation and reasoning but also the technology of reasonable and social experience and so on. In addition to the technical aspects of the measures, the "system level" measures can solve the hard cases in facts. The "system level" measures can point out direction for the judge. For instance as modern judicial strategy, the allocation of the burden of proof in the proceedings provides support for the judgment. Whether it is the technical level, or the system level, the judge should weigh the influence of different judgment on the future to reduce social cost, social harm and risk. The decision of the Peng Yu case provides a mirror for the judge to deal with similar cases. Judges should give judicial decision, based on social experience, inference or free heart syndrome. Judges should consider not only the fairness of the case but also the verdict of the case may have an impact on society.That there is no law to apply can not be the reason why the judge tried to avoid dealing with the hard case. The judicial way is the last way to protect the legitimate rights and interests of citizens. So the judge should face the hard cases. Otherwise it may cause citizens through illegal or extreme ways to safeguard their rights. The judge should give full play to the subjective initiative in the face of hard cases. In the course of the judge’s decision, the reason should be considered. "Reason" is the rule of thumb in people’s daily life and the values of social people generally agree. Therefore, reason is the value orientation of the law. When encountered hard cases, the judge can make the sentence reasonable by mediation or interpretation of law. In the course of the judge’s decision, the social effect should be considered. The judge should concern about the specific circumstances of the case and the specific circumstances of the case. The judge To make judgments more in line with the requirements of social justice and to achieve the best social effect, the judge cannot be confined to the law and should find the law and even to create the law. In the course of the judge’s decision, public opinion should be considered. The judge should see the public opinion in a dialectical way. The judge should listen to different voices and absorb relevant information from the public opinion to make a reasonable judgment so that the verdict is consistent with the ordinary people’s psychological expectations and general concept of Justice.