The Application Of Legal Rhetoric In Judge’s Interpretation

As an imported product,the judge’s right of interpretation has no room to grow under the litigation mode of the doctrine of original authority in China.But with the deepening of reform and opening up and the establishment of the Socialist market economy system,the judicial system faces major challenges.In the decision of the Third Plenary Session of the 18th Central Committee of the Communist Party of China,it was proposed that "to deepen the reform of the judicial system,we should let the judges be the judges and the judges be responsible",in a speech at a conference to commemorate the 30th anniversary of the promulgation and implementation of the current constitution,Xi said: "We will strive to make the people feel fair and just in every judicial case." The judges should be responsible for the cases they undertake,and should be given the right of interpretation if they want to make the people feel justice and fairness.The purpose of the judge’s power of interpretation is to make unclear matters clear.In the main countries of the two legal systems,there are differences in form,but there are similarities in function and value,that is,pursuing the unity of substantive justice and procedural justice,realizing "the winner wins the case,the loser loses the case";To protect the procedural subjectivity of the parties,make up for the lack of litigation ability of the parties,so as to avoid "surprise judgment",and to promote the one-time settlement of disputes in the first instance procedure.The exercise of the judge’s power of interpretation is not only beneficial to the acceptance of the result of the judgment,but also to the efficiency of the lawsuit.However,there are no clear provisions on the power of interpretation for judges in our country’s law.The Provisions on the power of interpretation are scattered in the interpretation of relevant departments.Due to the lack of legislative provisions,this will not only affect the balance of litigation,but also cause the complaint to the judge,and then lead to the decline of judicial credibility.As a special performance of judges exercising judicial power,Judge’s interpretation sometimes reverses the outcome of a case,so it must be logical.In order to regulate the improper exercise of the power of interpretation by judges,the scope of interpretation,the method of interpretation and the way of interpretation should be clarified,the level of the exercise of the power of interpretation should be constantly raised,and the acceptability of the process and result of judicial trial should be improved.In the field of Civil Litigation,there are many research results on the interpretation of judges,but most of them point to procedural matters,which do not avoid the path of legislative centralism.As a theory of persuasion and persuasion,rhetoric,which was born in the West,has the same characteristics as the aim of the judge’s explanation,and classical rhetoric has been perfected and developed by the efforts of Aristotle,in the 20th century,Perelman,Jürgen Habermas and others renewed the theory of traditional rhetoric and gave birth to the new rhetoric.The birth of the new rhetoric theory made Perelman an impassable monument in the history of rhetoric in the 20th century.He not only justified the name of rhetoric in order to continue the doctrine of the saint,but also enabled rhetoric to respond promptly to contemporary problems,and develop in response.Neither Perelman nor Jürgen Habermas wanted to limit their theories to rhetoric,they believe that the new rhetoric as a theory of practical reasoning should be able to affect the rhetoric,philosophy,law,political science and other fields.The integration of the theory of audience and the theory of negotiation in the interpretation right of the judge is an important embodiment of rhetorical integration jurisprudence.The paper consists of three parts:The first part is a summary of the judge’s interpretation right.It is mainly carried out from four aspects: First,it points out the connotation of the judge’s interpretation and reveals its main features;second,it expounds the background of the appearance of the judge’s interpretation right in our country,through the analysis of Procedure and entity,it briefly includes the present legislative situation of the judge’s Interpretation Right in China;thirdly,it summarizes the value of the judge’s Interpretation Right;Fourthly,it discusses the present situation of the exercise of the judge’s interpretation right in China,the main performance is not to exercise the power of interpretation,ultra to exercise the power of interpretation and the way to regulate the exercise.In the second part,the development of legal rhetoric is briefly summarized,and the new vitality of legal rhetoric is demonstrated through its development,which leads to the core concepts of "acceptability","audience theory" and "negotiation theory",it not only provides the goal for the full text to study the judge’s power of interpretation,but also annotates the way out of standardizing the exercise of the power of interpretation.The third part,this part is the end of the thesis,mainly discusses the application of legal rhetoric in the power of interpretation of judges.It is divided into two parts: First,through the introduction of the "audience",the judge clearly explains the target,and in the result,the use of legal rhetoric in the judgment shows the importance of legal rhetoric in the power of interpretation,Second,it is revealed that the ultimate goal of Jürgen Habermas negotiation theory is to reach consensus,in the process of reaching the goal,its important theoretical character,freedom,rationality and autonomy play a key role.In the process,it provides a reflective environment or condition for the exercise of the power of interpretation.