Administrative Review Of Judges' Judgment Thinking In China

The judges'thinking of judging cases can be summarized as"based on facts and based on law".In China's judicial practice,judges have long judged cases on the basis of judicial interpretation rather than law.Judicial interpretation as the basis of judgment reflects to a certain extent the administrative thinking of the application of law by judges.The administrative thinking of judges is one of the results of the administration of judicial power,but it is not noticed in the ongoing de-administrative reform.De-administration of the way of thinking of judges is a problem that must be taken seriously in deepening the judicial reform and needs to be changed urgently.First of all,the first part of the article will discuss the criteria for identifying the joint debts of husband and wife in the Marriage Law of the People's Republic of China(hereinafter referred to as the Marriage Law)and the Interpretation of the Supreme People's Court on the Application of the Marriage Law of the People's Republic of China(hereinafter referred to as the Judicial Interpretation of the Marriage Law),and explore the problems arising in the application of the law Judges regard judicial interpretation as administrative order,and on the basis of the existing research on the administration of justice,put forward the subject matter to be discussed in this paper,and review the trend of the administration of judges' judgment thinking.Then,the second part will adopt the method of comparative study to compare and analyze the thinking mode of judges'legal application in the judicial operation of the two legal systems(case law system and enactment law system),in order to extract the universal and regular thinking mode of judges in the judicial process,that is,the independent,autonomous and procedural thinking mode of law application.The circulation between legal rules and facts should give full play to their subjective initiative.This article will take this as the analysis framework of the full text,and analyze the thinking characteristics of judges in judging cases in our judicial practice.In the third part of the article,empirical analysis will be used.This paper combs the background of judicial interpretation of marriage law promulgated over the years,intercepts some typical cases of joint debts between husband and wife in judicial practice in China,takes judicial documents as an analytical tool,and takes the common characteristics of judges'judicial thinking extracted from the second part as a support point to analyze the characteristics of administrative thinking mode of judges' legal application in China.In judicial practice,administrative thinking is constantly infiltrating into the trial area.Judges are guided by a simple,mechanical and rigid formalist thinking,comply with the instructions of their superiors and make formatted judgments.In fact,this thinking mode of law application deviates from the general law of law application,violates the judicial law and has the characteristics of administration.Then,in the fourth part of the article,we will continue to explore the reasons for the formation of the administrative thinking of the judges in the general law of law application.The article will start with the whole process of the judges'judgment of cases,and take into account the influence of the administrative system of the reference Court on the judges' judgment.In order to reduce the rate of development and Reform in judging cases,judges tend to actively seek collective thinking under the pressure of the accountability system for misjudged cases,and it is also normal for them to ask for instructions and report to their superiors.Legislative judicial interpretation has also become the main basis for judges to judge cases.Under the dual pressure of administrative system and personal responsibility,the thinking mode of law application gradually reflects the administrative characteristics.Finally,the article will put forward corresponding suggestions for the reasons that promote the administrative thinking of judges'application of law,that is,the reasons for the analysis in the fourth part of the article,including gradually abolishing the legislative judicial interpretation,recognizing and respecting the independence and creativity of judges' application of law,activating the trial-level system to unify the application of law,dispelling the judicial mechanism of collective decision-making,and De-Administration of judicial responsibility system.And so on.At the same time,the recent implementation of case guidance system has also appeared the beginning of alienation of judicial interpretation,and it is suggested that the system should also be developed towards the direction of the judges' de-administrative thinking.