An Analysis Of "Penetrating" Trial Thinking

The introduction of the National Civil and Commercial Trial Conference(hereinafter referred to as the Nine Civil Minutes)first put forward the concept of"penetrating" trial thinking,and the nine civil minutes explicitly require judges to use"penetrating" trial thinking when hearing cases,to find out the true meaning between the parties and to explore the true legal relationship.The nine minutes also put forward a corresponding "appearanceism" is a scientific generalization of civil and commercial law,which is not a principle,and should pay attention to its applicable boundaries to prevent abuse.The concept of "penetration",which originated in the field of financial supervision,requires that the essence of business be seen through superficial phenomena,linking the source of funds,intermediate links and final investment penetration,and promoting the balance and coordination of financial innovation,regulatory effectiveness and financial security.The author after studying a large number of cases found that similar cases,different judges use different trial thinking,may lead to different judgment results.In the field of civil and commercial law,there is a dispute between formal justice(corresponding to the "appearanceism" trial thinking of this article)and substantive justice(corresponding to the "penetrating" trial thinking of this article).In recent years,most scholars in the field of commercial law have regarded "appearanceism" as a guigui,and "penetrating" trial thinking is in the downwind.The introduction of the nine people’s minutes stressed that the trial should pay attention to the substantive attribution of property,the trial can not be based solely on the appearance.The author believes that the introduction of the nine people’s minutes means that the judicial trial will be more substantive and light form,"penetrating" trial thinking or will be widely used in judicial trial.Chapter sprig Ⅰ,Chapter Ⅱ,Section Ⅰ,around two similar cases,explores the validity of the guarantee contract when the legal representative does not provide a valid resolution for signing the guarantee to the outside world,signing the guarantee contract with the outside state in its name and stamping the official seal without authorization.The two cases were similar in the circumstances,and the verdicts were quite different.In the first case,the judge adopted the "appearanceism" judgment thinking and found that the creditor had no obligation to review and ordered the guarantee contract to be valid.In the second case,the judge used the "penetrating"trial thinking,fine trial,and "penetrated" the case on the basis of the original legal facts and the application of the law.It is determined that the guarantee contract shall be null and void because the creditor has not fulfilled its formal audit obligation,and the non-"good fait" relative is not.The author thinks that the trial results of the two cases are not only different because of the different evidence,but also because the deeper level is also the difference of the judge’s trial thinking.Assuming that in the first case the company proves that the legal representative has a special relationship with the creditor and that the transaction does not conform to the transaction,if the judge adheres to the "appearance" judgment thinking,it may find that the evidence is not relevant or that the evidence is not sufficiently relevant.The author believes that it is not only evidence that determines the direction of the case,but also depends on the judge’s judgmental thinking.Through the case image to show the impact of the two trial thinking on the trial results,in order to the reader from the case of this paper to understand the difference between the two kinds of doctrine,thinking and making value judgment.The second and third sections of chapters one and two theoretically introduce the general situation of "penetrating" and "appearancealism" and analyze the legal basis and relevant legal provisions of the two.The third chapter analyzes and contrasts the two trial thinking from the macro and micro perspectives,and puts forward the bad ideas.The fourth chapter focuses on the advantages of "penetrating" trial thinking,and introduces its advantages from three angles:one is conducive to restoring the facts of the case;The fifth chapter takes the author’s limited experience and puts forward the specific proposal of applying "penetrating" trial thinking.As Judge Yu Bihua said:"Clear trial thinking,the trial of the fact-finding process will be more easily become clearer,trial efficiency will be more easier to improve,trial debate will become more targeted,the outcome of the trial is more likely to be closer to objective justice." "The author expressed his own humble opinion,in order to be beneficial to the practical trial.