Research On Opening The Obiter Dictum In Judgment

Opening the obiter dictum in judgment means writing the judges’dissent into the judgment and opening the dissent to the parties and public. As a system, opening the obiter dictum in judgment originates from common law system countries and spreads to some civil law system countries, such as Germany and Japan, after the Second World War. Compared with the aforesaid countries, the research on opening the obiter dictum in judgment in China is much less in-depth and systematic, and cannot provide enough theoretical support to juridical practice. Therefore, it’s essential to research systematically on opening the obiter dictum in judgment.Many scholars have expounded the advantages and disadvantages of opening the obiter dictum in judgment in detail. By analyzing the reasons to support or oppose opening the obiter dictum in judgment, we can fully understand how will it influence judicature and society on both sides. Then we can judge whether opening the obiter dictum in judgment has its value or meaning. This paper summarizes, studies and evaluates the arguments for scholars to support or oppose opening the obiter dictum, and concludes that it has more advantages than disadvantages to open the obiter dictum.Although valuable, it is still necessary to find out whether opening the obiter dictum is helpful in China. In fact, opening the obiter dictum will benefit the perfection of judicial system and the normalization of judicial activities. This paper expounds five positive effects to Chinese legal environment brought by opening the obiter dictum, which are ensuring the implement of collegiate bench system, reducing the separate of trial and judgment as well as administration of judicature, preventing jurisdiction corruption, ensuring the judicial justice and improving the quality and acceptability of judgment. In conclusion, opening the obiter dictum in judgment is necessary in China.Considering that Chinese judicial system and legal environment are special, we must research whether it is possible to open the obiter dictum in judgment in China. This paper discusses the possibility to adapt opening the obiter dictum in judgment to the Chinese judicial system, legal environment and status of judicial practice. At last the conclusion is that opening the obiter dictum in judgment can suit Chinese legal conditions and be transplanted to China.Based on the sufficient research of Chinese legal environment, this paper comes up with the system of opening the obiter dictum in judgment specific for China. Firstly, opening the obiter dictum in judgment applies to questions of law or of fact in any kinds of cases. Secondly, opening the obiter dictum in judgment should be used among the Supreme People’s Court and provincial higher people’s courts firstly, and spread to intermediate people’s courts. Thirdly, opening the obiter dictum in judgment should be judges’ right not obligation. Fourthly, reasons for the obiter dictum and judges’ name should be open as well as the obiter dictum itself. Finally, there is no rigidity requirement for the format of dissent, but dissent should be located in the last of judgment. By researching, this paper wish to let opening the obiter dictum in judgment play a positive role in China’s legal construction.