The Risk Avoidance Judicial Decision-making Logic In Judges Of The Second Instance Of Civil Cases

Judicial decision-making,the product of the interaction between judges and a certain social structure,is vital to the direction and effect of the judicial function.According to field investigation of an intermediate people’s court in southwest China,this paper found that as the final judge of civil disputes,judges of the second instance are facing multiple structural occupational risks.This makes them form a kind of the risk avoidance judicial decision-making logic that emphasizes self-protection while fulfilling the goal of court organization.The occupational risk faced by the judges of civil second instance in their work is the direct external cause of the risk avoidance judicial decision-making logic.Civil judges of second instance are faced with multiple occupational risks including political,judicial and social risks in their work.These risks,under the combined effect of external and internal complexity of justice,show a high degree of danger and pose a serious threat to the survival and development of judges in the organization.In order to achieve the organizational goal of the court and achieve self-protection,judges have developed a series of risk avoidance strategies.The reason why these risk avoidance strategies can be effective is that they can meet at least two dimensions of political correctness,strict law and reasonableness at the same time.The high risk-aversion decision-making tendency of civil second instance judges is an important internal cause of the risk avoidance judicial decision-making logic.The bureaucracy plays a role in shaping the decision-making style of the actors.Field investigation shows that the group of judges of second instance selected by bureaucracy is mainly composed of middle-aged and old judges who have worked in the judicial posts for many years.Their prospects for further promotion are dim and they lack the conditions or motivation for job-hopping.They belong to the bureaucracy originally.Conservative decision-makers in organizations who pay attention to self-protection.Under the common discipline of dislocated incentive mechanism and punishment-oriented governance mechanism,they are trapped in the weak family’s risk-resistant ability and powerful modern information dissemination mechanism,and are shaped as decision-makers with high risk-aversion tendency.Judges of the second instance who adopt the risk avoidance judicial decision-making logic pay great attention to their own safety in judicial activitieswithout intentionally pursuing the interests of salary,honor,promotion,etc.,attach importance to the legitimacy of judicial acts,and proactively transfer jurisdiction to colleagues and leaders,demonstrating a strong collective nature.The above characteristics of the risk avoidance judicial decision-making logic,unlike the profit-seeking judicial decision-making logic of British and American judges,run through the whole process of judicial decision-making of civil judges of second instance including hearing cases,identifying facts,applying laws and making final decisions.First of all,in order to avoid being prosecuted for exceeding the trial limit,improve the personal safety of judges and promote the mediation of cases,the judges of civil second instance adopt a way called "reception" to hear cases."Reception" is not explicitly stipulated by law,which is inconsistent with the provisions of the Civil Procedure Law on the principle that civil cases of second instance should be heard in court.It is a huge tension between limited trial resources and the increasing demand for judicial governance in contemporary China’s social and economic conditions.In order to meet the trial limit,the judges of second instance of civil cases have to meet the requirements of judicial governance.Accidental consequences arising from the completion of judicial trial tasks.The judicial efficiency of reception is higher than that of opening a court.It not only has certain institutional basis,but also conforms to the cultural tradition of attaching importance to substantive justice and the judicial habits of the ruling party’s mass line.It can basically realize the function of finding out the facts of a case and is more conducive to mediation than holding a court.By giving the parties the right to choose whether to receive or hold a court session,the legitimacy of reception is further enhanced,and the possibility of the judge being prosecuted for depriving the parties of their litigation rights is avoided.Secondly,the facts of the case identified by the second civil trial are constructed by many subjects,including judges,in the specific social and cultural background,essentially through the procedural and substantive legal system,rather than the absolute objective reappearance.However,in practice,because modern legal procedural justice is not widely recognized and accepted by the public,the traditional youth astronomy and the mass line of the ruling party and the realistic political and legal tradition require judges to thoroughly ascertain the facts of the case.In order to avoid being held accountable for mistaken facts,the judges of civil second instance adopt the methods of on-site investigation,visiting investigation,simplifying the reasons for identifying factsand retrial.On the one hand,they try their best to find out the facts of the case,on the other hand,they conceal the reasons for identifying facts.Thirdly,the basic situation of the application of the law by the judges of civil second instance is that some parties refuse to accept the application of the law of first instance.If the second instance judicature is not properly applied by law,it can reach a judgment result that can meet the political,legal and rational dimensions,and judges as judges of the final instance judicature will face risks.Therefore,in accordance with the requirements of state governance for appellate judges and the functional orientation of courts in the state governance system,the judges of civil second instance,under the constraints of legal provisions,trial-level system and retrial system,have produced four hedging strategies,namely,strict judgment in simple cases,flexible judgment in difficult cases,impact assessment and unified standards.Finally,the judges of civil second instance have limited power and unlimited responsibility in the judicial process,and at the same time the actual benefits obtained are very small.The asymmetry of power,responsibility and interests leads to the judges’ unwillingness to independent justice.In the formation of final judicial decision-making,the judicial power will be transferred and decentralized actively by means of submitting cases to collegiate benches,court meetings,professional judges’ meetings and judicial committees for discussion,consulting and reporting to the president,deputy president in charge and president,and discussing with colleagues in the canteen or office,so as to collectiveize judicial decision-making.The stable system logic creates the corresponding system environment,which triggers the corresponding behavior of judges.The judicial decision-making by civil judges of the second instance is most affected by the following five system logic.First,the logic of settling disputes.Settling disputes is the essential function of justice,which requires judges to resolve disputes between parties and restore social order in judicial individual cases.Civil second instance judicature cannot certainly stop disputes due to its final institutional settings.Ordinary parties do not understand the modern highly specialized legal knowledge and technology,and they may not accept even the judgments from judges of the last instance.How to settle disputes is what civil judges of the second instance must consider when making judicial decisions.Therefore,they adopt the "reception" method which helps to establish a trust relationship between the judges and the parties to hear the case.They adopt a consequence-oriented methodwhen determining the facts and focus on the practical settlement of disputes between the parties when applying the law.Second,the logic of the trial-level architecture.China implements the system of the court of the second instance being the court of the last instance.The trial period of civil cases of the second instance is only three months.Most judicial cases end after the trial of the court of the second instance.Under this level structure,civil judges of the second instance should consider resolving disputes,and establishing rules to govern within their jurisdiction.While sharing the pressure of judges of the first instance,they should also avoid occupational risks.They should recognize the overdue evidence submitted by the parties in the second instance,restore the facts as objective as possible to make the final judgment,and hear the cases in the "reception" way to improve judicial efficiency.Third,the logic of serving the overall situation.As the historical mission and political responsibility of China’s judiciary,serving the overall situation has always been a crucial goal of courts at all levels.Civil judges of the second instance as the judges of the final instance,are highly sensitive to the social and political effects of justice.In order to achieve the goal of national governance,judges are allowed to not strictly observe the law under certain circumstances.But what is the "overall situation" that the court should serve is ambiguous.Different subjects can explain the "overall situation" from their own positions,demonstrating the uncertainty of "different situations,different people,different courts and different laws".In order to better grasp the overall situation,judges have to submit their jurisdiction on their own initiative,invite presidents and leaders in the courts closer to the political center to participate in judicial decision-making.Fourth,the logic of the interpenetration of the Party,the government and the department.The organizational structure of Chinese courts can be divided into three systems: party affairs,administration and justice.The organizational principle of the party affairs is that the individual obeys the organization,the subordinate obeys the superior and the localgovernment obeys the central government.The administrative system organizes all the court staff according to hierarchy,which reflects the management logic that the lower level is subordinate to the higher level.The jurisdictionof judges in the judicial system is equal.The democratic system of the minority subordinating to the majority is practiced in thecollegiate bench and democratic centralism ofdemocracy first,then centralization is practiced in the trial committee.The organizational behavior logic of the leading Party affairs and administrative system penetrates deeply into the judicial system,which makes the civil judges of the second instance concern about being held accountable by the party affairs and administrative logic in judicial decision-making,so that they submit the jurisdiction to the leaders on their own initiative.Fifth,the mechanism of punishment.The management of judges mainly depends on prohibitive provisions with little incentive mechanism.There are many rules which stipulate prohibit acts for judges.Some of the relevant disciplines are clear and detailed,while some are general and vague.The subject who should be heldaccountableand the procedure of finding out who should be held accountable all reflect the administrative characteristics which are from the superior departments to the departments under them.Whether to initiate the procedure of finding out who should be held accountable,whether the judge’s behavior violates the norms,and whether the punishment is severe are all uncertain,which largely depend on whether the subject who should be held accountable "takes seriously".Under this management mechanism,civil judges of the second instance began to discipline themselves,inclining to use resources as much as possible to avoid risks in all aspects of judicial decision-making.The risk avoidance judicial decision-making logic does not represent the hypothetical deduction by the "economic man" in the judicial field,but the ideal type concluded from the empirical investigation of the judicial decision-making behavior of civil judges of the second instance in the sample court.Because the main causes of the risk avoidance judicial decision-making logic exist in different judicial areas of courts at all levels,this ideal type can also be served as an interpretative framework to analyze other judges’ judicial behaviors to some extent.The risk avoidance judicial decision-making logic deserves attention,because when risking avoidance behavior is repeated and accepted in the judicial community,the culture of risking avoidance generated from it will spread and spread in the courts,which may lead to the failure of judicial reform policy,make the courts face the crisis of organizational identity from within,and the impartialand efficient authority of the judiciary will be accepted to damage the emergence and operation of the risk avoidance judicial decision-making logic reminds us that judicial issues are a social and cultural issue.Only with profound social and cultural insights can we achieve good results in practice.