Theoretical Reconstruction Of Legal Application And Chinese Practice

The theoretical framework of judicial application of law is a basic problem of legal methodology. What's more, emphasis on the practical theory and construction of system of legal method in China must be based on empirical study of Chinese contemporary judicial practice. The context of theoretical study in this article uses the tradition of civil law system and Chinese judicial practice as a frame of reference. So, the theoretical study is closely related with the practical investigation.In the theory part, the analytic framework of "Ideology-Model-Elements" is applied. It follows the approach of "from top to bottom" to discuss problems:debating about ideology of the judicial decision, theoretical model transformation and the elements reconstruction under legal argumentation-reasoning model. In general, argumentation-reasoning model of legal application has the theoretical advantage. In the problem of ideology of judicial decision, there are two sets of implicit contradiction. The first one is the argument on "judicial law-making"(or the judges' discretion) between ideology of the bound judicial decision and ideology of the free judicial decision. Second, it is the potential tension inside ideology of the legal and rational judicial decision. Specifically, it is a controversy between authority of law and rationality of law on the philosophy of law, and also a debate between legislative power and judicial power on the political science. From view of tradition of civil law system, the ideology of the legal and rational judicial decision is a better choice. In the problem of theoretical models of legal application, four theoretical models are considered. They are judicial syllogism model, philosophical hermeneutics model, discretion model under legal reasoning and legal argumentation-reasoning model. By comparison, argumentation-reasoning model of legal application has theoretical advantage and should be able to implement the ideology of the legal and rational judicial decision. In my opinion, there are two main points of argumentation-reasoning model of legal application, which are "reasoning nucleus" and "dialectical tier "."Reasoning nucleus" mainly concerns about start-point and basic construction of legal reasoning. The former is about legal theory of formal and informal sources of law, and the latter concerns how these premises can support the conclusion. With constructing the rule of procedural argumentation,"dialectical tier" dedicates to clarify the obligation of argumentation of the participants. So, the theoretical model has characteristics of verifiability and evaluability, which makes the rational degree higher. In the aspect of the elements of legal application, on the one hand, the substance of the theoretical model of legal application is the overlapping "fractional decisions" of legal finding, legal interpretation, fact-finding, legal argumentation, interests measuring, filling-up legal loopholes, etc.; on the other hand, the relationship between these elements and the pattern of elements are different in different theoretical models of legal application. In the argumentation-reasoning model of legal application, legal finding is corresponding to pluralism of sources of law. Its core mission should be to do judicial recognition of norms and deal with conflicts of norms. Legal interpretation, as an authoritative legal argument, should be "subtraction" homework--giving up the "correctness guarantee" of justice and returning to the "nature" of releasing of legal norms meaning. Fact-finding should be clear about that the debate around fact is the core mechanism of judicial proof, because only through debate and dialogue can those fragments of evidence be spliced and reduced into a "picture" of complete facts. Legal argumentation, as an element of legal application, is mainly related to topoi-oriented, a display and balance on substantive reasons of one specific issues.In the practical inspection section and the context of Chinese contemporary judicial practice, this article attempts to explore an approach of "from bottom to top". That is, the research work begins from judicial practice of details. And it should prepare for the "theoretical ascent". There are two purposes of this research work. Firstly, it looks for the combination of theory and practice; secondly, it makes preparations for construction of system of legal methods in China. Case study, as an empirical research of legal methodology, is both practical preparation of legal application theories and the practice itself at the same time. In addition, it is also a reflection of practice. So, it is an available way to inspect china's judicial practice. Thus, this paper chooses nearly300civil cases from the "Supreme Court Bulletin (2004-2011)" as the preliminary analysis object. The main work is to describe the elements of legal application deeply, which are legal finding, fact-finding, legal interpretation and legal argumentation. What's more, it discusses several following main problems on basis of cases study. Firstly, the judicial referee documents (judgment reasons) should be reflected and reconstructed. Secondly and more importantly, although the case empirical study is based on the investigation of details, its primary contribution is forming an overall image of judicial practice. From this point on,"idea of law" held by the official has a clear "formal" tendency. From another point of view, the judge has "pragmatism" attitude of consequences orientation in specific cases. It also suggests that we should review the complexity of judicial reality, and the interactive relationship between legal theory and judicial practice. Finally, it reflects on Chinese contemporary judicial practice and study of legal methods, standing on the point of the theory of rule of law and judicial modernization. On the one hand, it has to be realized that law method is the technological essence of judicial modernization. On the other hand, the nature of legal method determines its ability to maintain the normal operation of the rule of law, but not to facilitate the process of the rule of law as a strong impetus, let alone to "save the rule of law". Thus, its limitation must be recognized clearly. Further, in the context of contemporary China, debugging of the ideology of judicial decision and constructing the theoretical model of legal application must be built on judicial reality, which requires keeping reflective "equilibrium" between the theory construction and judicial practice. In conclusion, to enhance the judiciary ability to satisfy the social needs and improve the judicial quality itself as well is the ultimate goal.