The Research Of Legal Method's Judicial Function In China

In the background of the new normal of rule of law,the jurisprudential circles in China have shifted their research focus from legal method to judicial practice.It is true that the academic circles have reached common consensus on the importance of judicial practice.At present,the academic circles simply carry out conceptual and unsystematic researches and focus on the theories of legal methods and functions instead of the real application of legal methods to judicial practice,thus preventing these methods from playing a part in judicial practice.On the basis of the judicial practice in China,this paper offers a study of the functions of legal methods from four aspects:the first part mainly introduces the specific judicial functions of legal methods.First,legal methods are conducive to guaranteeing the uniform application of laws,promoting the effectiveness of administration of justice and safeguarding and enhancing the judicial credibility in China.Besides,legal methods can also strengthen the judicial social control functions because it contributes to the solution of social contradictions,unification between legal effect and social effect and enhancement of the public legal consciousness.Although legal methods can promote judicial justice and resolve contradictions,these functions,however,are quite limited.In the second part,this paper studies the limit of these legislative functions.With respect of advancing the judicial justice,legal methods seem to be an instrument of serving the legal purposes and values at the macro level;indeed,it does not possess the value judgment ability.For this reason,it is not legitimate and rational to apply legal methods to judicial adjudication.Within the macroscopic system of legal methods,there are many uncertainties in the practical operation of legal methods.Legal methods are also beset by its limited functions in resolving social contradictions because the application of legal methods can resolve case disputes but cannot fundamentally settle the deep social contradictions behind these cases.The third part mainly explores the current situation of judicature and the barriers influencing the functions of legal methods.These barriers are manifested in terms of technique,subject and institution.Technically,legal methods are lack of the operational standards and testability.With respect to the subject,the Chinese judges are short of the knowledge and skills of applying legal methods and independent trial status.Institutionally,China still has not established the institutional system for the application of legal methods.These barriers are mainly demonstrated by the low-quality and unreasonable judicial adjudicative documents in China.The fourth part is targeted at looking for methods to overcome these barriers.Technically,it is suggested to introduce external constraint mechanism and strengthen judges' study of guiding cases and application the law of social sciences.To remove the subject barriers in the functions of legal methods,it is important to set up and improve the education,inspection and training mechanism of legal methods and enhance judges' quality in legislative methods.At the same time,it is demanding to promote the reform of judicial system and strengthen independence of trial and decision.Besides,strengthening the argument of judgment document and improving the judgment document system can not only provide a sound institutional space for the objective and just application of legal methods by judges,but also effectively supervise and restrain the functions of legal methods and give full play to the positive role of legal methods.