On Consequence Consideration In Judicial Decision

Due to the difficulties in the application of law brought by hard cases and the test of whether the judgment can be recognized,plenty of judges and scholars have turned to seek another way to make judicial decisions,which refers to"proving the judgment through the consequence".In the process of theorizing the adjudication mode based on consequence consideration,some scholars,on the one hand,take the standpoint of legal dogmatic,regarding consequence consideration as the support or supplement of adjudication methods of legal dogmatic.On the other hand,they make consequence consideration an independent method.As the latter approach is contradictory to their standpoint of legal dogmatic,the method of consequence consideration they assumed is full of contradictions in terms of operational steps.As a matter of fact,whether to maintain legal stability or to reduce the decision-making costs,even in hard cases,the prior consideration for a judge is the provisions of law other than the consequence.Deductive reasoning based on the legal norms is the core of judicial decision and considering consequence is merely to determine the major premise of legal reasoning.As for how consequence consideration play its role in a manner consistent with its orientation as a kind of“support or complement",we may view it as a "complement to the method"in hard cases with ambiguous rules which need to be interpreted with objective purpose and hard cases with legal loopholes where new rules need to be created beyond the law.In these cases,as a kind of "legislative fact",consequence combining with legislator's purpose and/or legal principles jointly determines the content of legal rules as the major premise of reasoning.In addition,consequence consideration may also have an indirect effect on the formation of the minor premise of reasoning in the process of acting on the major premise of reasoning,which is reflected in the fact that the facts of the case will be determined with the consideration of the consequence and deviate from the objective neutrality.In order to avoid the occurrence of such"anti-rule of law"latent defect,based on the distinction between the identification of evidence facts and legal facts,it is necessary to prevent the consequence from taking effect in the identification stage of evidence facts.Meanwhile,efforts should be made to improve the ability of judges to identify legal facts from the aspects of fact-finding and judicial documents writing.