An Empirical Analysis Of The Constitutional Discourse In Judicial Adjudication

In China's judicial practice,the expression of constitutional discourse in judicial adjudication can be seen in three aspects:Firstly,constitutional norms are used as justification in judicial adjudication,which includes not only "quoting only constitutional provisions,but also"not interpreting or elaborating on the content of quotation"but also"quoting not only constitutional provisions,etc." It also elaborates and explains the content of the constitutional provisions.Secondly,the constitutional norms are taken as the basis of judgment in judicial decisions,that is,"including the constitutional norms as the basis alone or together with other laws and regulations as the basis of judgment".Thirdly,the court responds to the parties'appeal by citing the Constitution.This paper mainly searches through the Chinese Judicial Documents Network with the "legal basis as the Constitution" as the search condition,and retrieves 478 cases and summarizes these cases,that is,according to different categories of cases,case time,court hierarchy and the expression pattern of constitutional discourse to conduct typological analysis.Firstly,according to the different types of cases,it can be found that the proportion of cases using the Constitution in civil law cases is the largest,which is related to the large number of civil cases and more disputes in our country.The proportion of civil law cases themselves is more than that of criminal law and administrative cases.Different types of cases are also different in different regions.Guangdong Province is the region with the highest quotation of the Constitution.Henan Province tends to be the second highest.Ningxia and Shandong Province follow closely.There is only one case of quotation of the Constitution in Hainan Province,Qinghai Province and Tianjin City.Secondly,according to the time of the case,it will be found that the reference in the judgment documents is made.The cases of the Constitution changed obviously in 2016 and dropped sharply.In the same year,the Supreme People's Court promulgated the Regulations for the Formulation of Civil Judgment Documents of the People's Court on June 28,2016,which clearly stipulated that civil judgments should not be based on the Constitution.By 2018,there will be only 28 cases.Thirdly,according to the different levels of the courts,it will be found that the grass-roots courts use the Constitution more frequently than the intermediate courts and the Supreme Court.Finally,according to the different expressions of the Constitutional discourse,it will be found that the main ways of citation are embodied.As mentioned above,the reasons for judgment,the basis for judgment and the court's response to the parties'claims are three aspects.Through typological analysis of these three aspects,we find that there are some problems,such as simplification of citation form,unclear premise of citation,unclear limitation of citation of constitution and neglect of training judges'constitutional thinking.Through the analysis of the use of constitution in judicial adjudication,it is found that the expression of constitutional discourse has both positive and negative effects on judicial adjudication.Finally,according to the actual judicial situation of our country,this paper puts forward a reflection on the constitutional statement of judges in judicial judgment documents,that is,under the current constitutional system of China,the Constitution can not be quoted in judicial judgment.When encountering the Constitution in judicial practice,it is necessary to train judges'constitutional thinking,make good use of the system of selecting judges and encourage judges to participate in more academic activities in the direction of constitution.At the same time,we need to explore the possible limits of constitutional discourse and flexibly apply the legal interpretation method of jurisprudence in the trial of specific cases in the case of exhaustion of legal norms,instead of blindly trying to evade the interpretation of specific legal norms by introducing constitutional provisions in judicial adjudication documents.