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Study On The Balance Between Formal Justice And Essential Justice In Judicial Trial

Posted on:2022-02-07Degree:MasterType:Thesis
Country:ChinaCandidate:Y J ChenFull Text:PDF
GTID:2506306509981849Subject:Science of Law
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Since the founding of the People’s Republic of China,the construction of the rule of law in China has appeared the trend of "attaching importance to the entity and neglecting the procedure",which has led to the emergence of many unjust,false and wrong cases.Until the concept of ruling the country by law was put forward,this situation has been gradually changed.With the convening of the Ninth National People’s Congress,the country has written the rule of law into the constitution,and the academic circle has had a heated discussion on the relationship between the formal justice and the substantive justice of law.But the discussion did not produce substantive conclusions,and as time went on it died down.Until the 18 th National Congress of the Communist Party of China,General Secretary Xi Jinping proposed the rule of law concept of deepening judicial reform and promoting social fairness and justice,and the19 th National Congress even took "deepening the practice of ruling the country by law" as the direction of efforts in the next stage,taking this as an opportunity to re-attach importance to the issue between formal justice and substantive justice.In the course of judicial trial,due to the influence of the generality of law and the variability of specific cases,the conflict between formal justice and substantive justice will inevitably appear.In order to resolve this conflict,scholars are eager to express their views.Generally speaking,it can be divided into three categories: the theory of formal justice precedence,the theory of substantive justice precedence and the theory of balance between formal justice and substantive justice.In many views,this paper advocates to give priority to formal justice,and give consideration to substantive justice,so as to achieve the balance between formal justice and substantive justice,and finally achieve social justice.In the process of discussing the balance between formal justice and substantive justice,this paper firstly analyzes the related concepts of formal justice and substantive justice,firstly discusses the evolution of the concept of justice in China and the West,the classification and value of justice,and lists the justice concepts advocated by Chinese and foreign scholars in different periods.The justice is divided into different types according to the subjects,the fields and the interests of the subjects,and the value of justice,such as fairness,freedom,order and efficiency,is analyzed.Then it focuses on the concept,connotation and specific characteristics of formal justice and substantive justice,and makes clear the necessity of their existence in judicial trial.Secondly,it briefly summarizes the case of She Xianglin and discusses the issues such as extorting a confession by torture,not conforming to the requirements of criminal proof,the difficulty of applying suspected crime,case coordination and public anger,etc.And then through the analysis of cases and problems,this paper discusses the form justice and substance justice in the judicial conflicts of specific performance,in general is the pursuit of essential justice and pursuit the damage caused by the formal justice and formal justice may cause substantial injustice,and list the cause of the conflict,the two main include the exteriority of justice in both form and essence the internality of justice,The normalization of formal justice and the flexibility of substantive justice,and the lag of formal justice and the reality of substantive justice;Finally,on the basis of the above,combining the case from the legislative and judicial perspectives,this paper puts forward concrete and feasible suggestions to achieve the balance between formal justice and substantive justice.Suggestions from the legislative perspective mainly include: First,to improve the legal norms,focusing on the improvement of procedural law norms and substantive law norms;The second is to interpret and apply the law.The suggestions from the judicial perspective mainly include: First,the judge exercises the judicial power independently to ensure that the final evidence is formed in the court;Second,the judge makes reasonable use of the discretion to realize the justice of the case;Third,improve the litigation supervision system to ensure the realization of the balance between formal justice and substantive justice.
Keywords/Search Tags:justice, formal justice, substantial justice, conflict, balance
PDF Full Text Request
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