| Local regulations are the important and integral parts of the socialist legal system with Chinese characteristics.Among them,local regulations which implement higher-level laws refer to local regulations which specify matters in light of actual circumstances of the jurisdiction for the purpose of implementing a law or an administrative regulation.Meanwhile,their contents do not contravene the spirit,basic principles and specific contents of laws and administrative regulations,which means they are legal and valid in the normative sense.Therefore,local regulations have a connatural advantage and play a prior role in dealing with local cases,which can achieve the goal of the fit between the contents of the higher-level laws and the facts of local cases.They should be applied in judicial application.However,that does not come true in judicial practice.In the cases involving local regulations which implement higher-level laws,more trial judges have applied them selectively,not necessarily,or refused to apply them as judgmental reasons or bases,and have tended to apply their higher-level laws as judgmental reasons or bases,which makes them gradually lose their inner functions given by their nature and legal norms and get into the predicament about local regulations which implement higher-level laws are not applied.So,why are local regulations which implement higher-level laws not applied?What are the reasons that trial judges are not willing to apply,and do not dare apply,and even reject applying the local regulations which implement higher-level laws?How to realize the application of local regulations which implement higher-level laws?From the organizational perspective,such as organizational goals,structure,systems,and relationships between organizations,the analyses of the specific systems within the court and the relationships between the court and other institutions provide a good perspective for answering these questions.Various specific systems within the court often have their own goals.Among them,the supervised and guided relationship between the upper and lower courts and the quality evaluation of legal cases which is relevant to judges’ performance evaluation are also the same.There is an interaction between the supervised and guided relationship between the upper and lower courts and the quality evaluation of legal cases which is relevant to judges’ performance,which presents a joint guarantee for the equality and independence of judges at all levels of the courts,urging the judges to identify facts and apply laws correctly and ensure the uniform application of laws,in order to achieve judicial fairness and justice.However,in judicial practice,this interaction has resulted in the “latent dysfunctions”: Due to the tiered structure of the courts,judges in the upper courts have different powers from judges in the lower courts,and the structures of their knowledge are also different.As a result,in judicial application,for the local regulations which are in a lower ranking,judges in the upper courts may lack of understanding or trust in them,or have different understandings about their application from the understandings of the trial judges or judges in the lower courts,which will lead to the application to be revised.In addition,the existence of “documents with judicial interpretation” with certain compulsory application formulated by the upper courts has further reduced the space of application of local regulations which implement higher-level laws.Moreover,the quality evaluation of legal cases and judges’ performance evaluation both focus on the quantitative indicators,causing the trial judges to worry about whether local regulations which implement higher-level laws they intend to apply will be revised in the court of second instance,which will affect the quality evaluation of the courts they belong to and their material benefits,such as promotion,salary,awards and merits.Therefore,the trial judges have adopted a strategy which has a tendency of“consequentialism”,which would help them avoid risks--to choose similar judicial behaviors as the judges in the upper courts and reject the application of local regulations which are in the lower ranking and implement higher-level laws.These lead to a low rate of the application of local regulations implementing higher-level laws in judicial application,which is not expected,intended and recognized by the designers who designed the above specific systems within the court.At the same time,the above judicial phenomenon reveals that the judicial application of local regulations and whether they can have their effectiveness or not is not only dependent on their own circumstances,such as the legislative contents and quality,but also depends on the cooperation of the court--judges’ behaviors influenced by the operation of specific systems within the court.The rejection of the application of local regulations which implement higher-level laws by trial judges is based on the“latent dysfunctions” caused by the interaction between the supervised and guided relationship between the upper and lower courts and the quality evaluation of legal cases which is relevant to judges’ performance evaluation.So,that is also hidden under the surface of a wonderful prospect of “unifying the application of laws” and“the disputes between the parties settled”.This shows an implicit restriction of the local people’s courts on the local People’s Congress,which is not conducive to the judicial application,legislative improvement and progress of the local regulations which implement higher-level laws,and breaks through the interaction and cooperation between the local people’s courts and local People’s Congress under the goal of “rule of law”.It will also affect the attitudes of other institutions to the local regulations implementing higher-level laws and the application by them.Therefore,only by trying to eliminate the “latent dysfunctions” caused by the interaction between the specific systems within the court and promote the communication and cooperation between the local people’s courts and the local People’s Congress,can it jointly promote the judicial application of local regulations which implement higher-level laws,the progress of the local legislation and the construction and implementation of the rule of law in China. |
