The Practical Logic Of Basic Justice In The Transitional Period Of Social Governance

Under the context of transformation of social governing,based on the main stream of legitimization and modernization,this paper views basic justice as a dynamic practice process that is not only restricted by the macro-structure,but contains initiatives of the actors as well.In other words,basic courts are taken as the subject of action,and the corresponding internal layer and external structure of basic justice are investigated.On this basis,the practical logic of the basic justice in different judicial actions,such as case filing,trial,execution and complaint reporting,is analyzed.Through field survey in Yuanshan County Court of Guizhou Province,and by combining with other related materials,the following findings can be concluded regarding to internal layer and external structure of basic justice:Organizational mode of bureaucratic court fully reflects the instrumental rationality,but it also causes bureaucratization of basic justice,such as excessive agencies,hierarchical structure relations and dehumanization management.Then,institutional reform of judge posts and judicial responsibility is aimed at finding solutions to these problems.The local public power structure and the management structure of political and law embedded in basic justice,have significant impacts on judicial operations of basic courts.It is necessary to take measures of both delocalization and dis-embedding regarding the structure level,and remove the barriers of improper intervention through the sunshine judicial mechanism.Filing of cases marks the beginning of legal resolution of social conflicts.Under the examination institution of case filing before May 1,2015,basic courts were limited by their ability and authority,and there were numerous selective judicial phenomena.Then,the registration institution of case filing started,the prosecution barriers were broken down,but also intensified the "litigation explosion" phenomenon of judicial overload problem.Therefore,measures such as multiple resolutions of social disputes,diversion of simple cases and complex cases,and coordination of mediation and litigation are widely adopted now.According to the criterion of legality,trial operation modes can be summarized as three ideal types: judgment of "observing the law",mediation of "based on the law" and coordination of "beyond the law".Basic courts use the formalization of routine cases,the equity of complex cases and the visualization of procedural justice as their judicial practice logic.In the face of cases with high certainty of both facts and laws,Weber’s theory of formal rational law and his analogy of "vending machine of law" are reasonable.When the facts are only relatively certain,or the legal provisions are not clear and the conflicts of interest are complex,basic courts should use sociological perspective to actively fill legal loopholes,fully consider legal factors and social factors,and make an equitable treatment.Mediation is a cooperative judicial action which can "construct a semi-autonomous social field".Relying on tacit knowledge of justice,mediation can produce "vague legal products" to meet social needs and reflect the judicial exploration and utilization of local legal resources.Due to insufficient judicial authority and ability,or the need to avoid mechanical judgment in specific cases,coordination is the way to implement law "softly" through an administrativelitigation.Then,it can reconcile interests of both sides relatively and maintain the legality and legitimacy of basic justice as far as possible.Because of the new round of judicial reform,coordination is gradually transformed into a supplementary mechanism in administrative litigation.Execution of cases and judicial petition reflect actual effects of law.Execution is an essential method of social control,and relative regulations of basic courts are embedded in the system engineering of judicial reform and construction of social credit,which involves coordinating multiple relations between state and society,the authoritative and the local,courts and other agencies,courts and both parties.Judicial petition is the intersection of justice and complaint reporting institution.Since December 2013,the diversion of judicial petition and ordinary petition has been implemented which has promoted the reform of handling judicial matters according to judicial logic rather than administrative logic,and effectively reduced phenomena of "with the law" and evasion of law in judicial petition.To sum up,in the context of social governing transformation,the practical logic of basic justice means that our state and society make joint efforts to modernize social govern by law.In this process,basic justice continuously realizes legitimization and modernization of law and our state.The rule of law requires basic courts to keep up with the times and adapt measures to correspond with the local conditions,so as to realize the benign interaction between law and society,state and society,and nationality and locality.Therefore,it is a responsive justice,which is inseparable from the concept of substantive rule of law and the comprehensive governance model of public security.