Pedigree Formation And Path Selection Of The Judge's Trial-Responsibility System In China

How to judge the responsibility is a core issue of the judge's trial-responsibility system.China's judge's trial-responsibility system has experienced three successive periods,namely,the period of the investigation system of misjudged-case-responsibility carried out autonomously by the local authorities(1990-1998),then the period of the illegal trial-responsibility system leaded by the Supreme People's Court(1998-2015),at last the period of the judicial responsibility reform designed in top-level by the central authority(2015-).After these three periods,China has formed a special pedigree of models about how to judge the responsibility in the judge's trial-responsibility system,which consists of “result responsibility” imputative model which contains the exemption situations for subjective responsibility and "counduct responsibility" imputative model.The formal structure of “result responsibility” imputative model can be expressed as “intention + judgement error” and “(negligence + judgement error)+ grave consequence”.Under “result responsibility” imputative model,judgement error is considered as a necessary condition in imputation,while grave consequence as a aggravated result is required to attach to judgement error to play a role.The formal structure of “counduct responsibility” imputative model consisits of two parts,namely,"subjective fault + illegal conduct" and "(subjective fault + illegal conduct)+ judgement error/grave consequence".Quite different from “result responsibility” imputative model,under “counduct responsibility” imputative model,illegal conduct is considered as a necessary condition in imputation,while judgement error is required to attach to illegal conduct to play a role as well as grave consequence.Since the early 1990 s when China carried out the investigation system of misjudged-case-responsibility,“result responsibility” imputative model has always been regarded as the core part of the pedigree of models about how to judge the responsibility in judge's trial-responsibility system.When faced with the common phenomenon of “fault-presuming” in reality,in order to ensure its formal validity,“result responsibility” imputative model introduced the exemption situations for subjective responsibility.However,the exemption situations for subjective responsibility didn't effectively resolve the crisis of formal validity.Because from the perspective of practice,in some special cases,it's actually difficult for judges to exercise the right of defense given by the exemption situations for subjective responsibility,this problem caused judges' s occupational safety to be threatened largely.Further more,“result responsibility” imputative model often caused some other serious “negative functions”,as follows: firstly,because of its administrative characteristics and institutional style of rigorous responsibilities to threat the judge's interests,it led to the “counter-effect” that it governed misjudged-cases while caused some other misjudged-cases;secondly,judges voluntarily gived up independence and seeked external intervention,which not only threatened the realization of judicial justice,but also led to the weakness risk of the trial-grade system and the litigant's right to appeal,and at the same time attacked the stability of the distribution pattern of judicial resources;thirdly,in order to make fewer judgement to make fewer errors,judges often compeled the litigants to accept mediation by means such as “ putting pressure on the judgement”,which resulted in the unreasonable restrictions on the timely appearance and function exertion of the judicial judgement in the dispute resolution.Based on the understanding above,this article hold that “result responsibility” imputative model should be removed from the pedigree of models about how to judge the responsibility in judge's trial-responsibility system.This kind of reform doesn't mean that judge's power of trial is not restricted,but it should be realized through "counduct responsibility" imputative model rather than “result responsibility” imputative model.On the rationality analysis,the logical premise of "counduct responsibility" imputative model is to be tolerant with the technical-cognition judgement errors caused by judges faced with the indeterminacy dilemma in fact-finding or application of law,and the normative values of this model consists in the safeguard of making right judgement and the maintenance of "visible justice" based on inter-subjectivity through the standardized control of the trial process.In order to provide principle guidance and evaluation basis for the current and the continuing reform of judge's trial-responsibility system about imputative model,and prevent “result responsibility” imputative model from escaping to "counduct responsibility" imputative model.Bases on the comprehensive consideration of two reasons of responsibility-reasoning,namely the controllability of causal-conduct and the maximization of institutional income,in the negative sense,this article argues that the validity of "counduct responsibility" imputative model should base on one key principle that it should not take “judgement errors” which include errors in fact-finding or errors in application of law as “illegal conduct”.Under the restriction of the validity principle above,this article gives a concrete construction about "counduct responsibility" imputative model from two dimensions contrary to each other which are respectively the radiation scope and the forbidden scope.The radiation scope of the “conduct responsibility” imputative model includes two kinds of illegal conduct types,namely,the “formal/procedural illegal conduct” and the “appearance-illegal conduct”;however the forbidden scope of “conduct responsibility” imputative model points to “the field of substantive judgment” along to the substantive discretion,which mainly involves two aspects,namely fact-finding(consists of the evidence qualification and the probative force,etc)and application of law.