Research On The Risk Avoidance Behavior Of Judges At The Local Level

According to modern political philosophy and economics,Everyone is a rational person and an economic person.It is human nature to seek advantages and avoid disadvantages and to maximize self-interest.Does this theory match the process of judge justice? Will judges take risk-averse trials because of the risk of the case? How to regulate these behaviors? These are questions worthy of study,especially in the environment of the China where the boundaries of judicial power are more chaotic.In practice,judges will encounter trial risks from all sides.These risks include risks from society,risks from state power systems,and risks from Judicial system.The realistic manifestations of the risk include: the retaliation,entanglement and threat of parties to judges and their families;the bad feedback of the state power system and the society due to judges’ specific judicial actions;and the retaliation of the state power system encountered by the judges hearing case;the regulation of Judicial system and so on.As a powerful rationalist,judges will not waiting when faced a variety of trial risks with serious consequences.Empirical investigations found that,judges will adopt various strategies to evade trial risk in the trial behavior.He can rely on the Collegiate bench,trial committee,court leaders,higher court,Party committee political and legal committee to evade the trial risk.He can also rely on the judicial technology such as referees,the specific judicial system and judicial techniques such as attitudes and emotions to evade trial risks,and even evade trial risks in a speculative manner such as illegal refereeing.From the perspective of individual rational and self-interest,the behavior of judges should follow the logic of economics when they faced to strategic choices involving their own interests.Through the “cost-benefit” analysis of the judge’s evading trial risk behavior,it is found that if the judge does not adopt the risk aversion strategy in the case of a high-risk case,the cost is far greater than the benefit that should be obtained.Based on China’s current judicial ecology,the opportunity cost of judges to try risk aversion is extremely low.Based on the analysis of social cost theory,the society needs to understand and tolerate the judge’s behavior of evading trial risk,otherwise it will cost a high social cost.In theory,judges use the power of the institutional system to evade trial risk with the lowest cost and the greatest benefit.However,because of the limited judicial resources,the game between the judge and the institutional system in the issue of allocating judicial resources leads the judge to rely on his judicial technology more often.And even have to take risks in some cases,adopt a speculative approach to avoid trial risks.Based on the analysis of economics,the reason why judges adopt trial risk aversion strategies in individual cases is the weak judicial occupational protection mechanism and the lack of judicial incentive mechanism.Judge’s trial risk aversion has brought many negative effects to practice: first,it has caused many judicial systems such as Collegiate system,trial committee resolution,trial system,judicial mediation systems and judicial assistance systems to be evacuated,distorted,castrated,and institutionalized.secondly,it severely limits the function of judicature filling legal loopholes;third,it severely restricts the function of judicial power control of administration power.Rethinking why Chinese judges have encountered so many different types of trial risks in their careers,why do Chinese judges need so many trial risk aversion behaviors.The deeper reasons behind the phenomenon.First of all,In the current local state power allocation structure,The position of judicial power is not prominent.In the specific power structure design,the court’s judicial power also should accept the leadership of the party committee’s political and legal committee,and the supervision and leadership of the National People’s Congress,the prosecutorial supervision of the procuratorates,and the intervention of the Strong administrative agencies.Secondly,in China’s transition period,the judicature must not only solve the disputes,but also undertake the historical mission of organizing the society and promoting states’ modernization.In this process,the urban-rural dual structure problem and urbanization problems that accompany the process of China’s modernization are fed back to the judicial field in different forms,becoming a difficult judicial issue,and the social risks of the transitional society are transformed into Judicial risk.Third,in terms of cultural psychology,the traditional Chinese ethics to maintain social operation have collapsed in the process of China’s modernization.The value of traditional Chinese non-litigation is replaced by the blind “right” consciousness that people are awakened.Because of lacking rule of law tradition,the litigant has the characteristics of blindness and unscrupulous in pursuing the interests of litigation.Although the above problems are macroscopic and huge,all the major and far-reaching issues of an era will inevitably be reflected in the judicial system as the official solution and main solution to social disputes.In other words,these problems are inextricably linked to the judge’s trial risk aversion behavior.It’s found that in the current political ecology of China,there are many political power and social reasons for judges’ trial risk relying on the state power system and relying on its own technology.This behavior that grows in the current political and social environment cannot be eradicated in a certain sense unless the political and social ecological environment changes radically.But restrictions and controls are possible and necessary.The speculative approach adopted by judges to evade trial risk should be completely eliminated because it violates the fundamental principles of the judicature The strategy of regulating and guiding judges’ risk aversion of trial should improve the political ecology of the judicial system,improve the status of the judiciary in the political and social life of the country;Strengthen the professional security of judges,establish a professional incentive mechanism for judges;Improve people’s judicial cognition and optimize the public’s judicial needs;Strictly implement the judicial responsibility system and standardize the use of judicial technology.