During the three years of studying law, teachers have carefully created the sacred values of law for our reserve army that has just stepped into the door of legal person. Both the records of ancient unicorns in China and the tradition of British kings under the law convey the belief of equality and justice of the law. Therefore, before we know the legal elements of infringement and what is maritime lien, we have abandoned the layman's view that law is a complex legal provision and began to understand it with reverence. Law is not only a simple combination of laws and regulations, it just reveals the fruits that we can easily see on the ground, and for them, it is the deep-rooted root buried in the ground-jurisprudence. This is the essence of legal education. Understanding and applying the law is only the first step, and analyzing and critically thinking about the law is a deeper layer. In the fairy tale and vision of a balance in the left hand and a sword in the right hand, generations of lawyers have come out of law schools, both at home and abroad.
In our social life, there will always be acts involving the law. Through various forms of keeping pace with the times, such as network openness, government affairs openness, environmental rights and demolition law, the voice of improving civil rights is being shouted louder and louder. Surprisingly, however, when we were really involved in a lawsuit for some reason, our attitude changed completely.
During the internship, we have ample opportunities to meet all kinds of litigants, from well-funded legal persons to weak citizens, from company bosses to retired workers, from elderly couples to newly married young people, but no matter who they are, they try to avoid going to court to resolve disputes. And this fear of the court is getting stronger and stronger with the weakening of the strength of the parties. I remember a couple being sued for mortgage by a branch of Bank of China. When we informed them to come to the court to collect the complaint and other documents, they immediately hung up and they never answered. Without filing a complaint, the lawsuit cannot be carried out. We had to send it by post instead, but the client escaped by deliberately not being at home during the day. Finally, we had to deliver it ourselves. I happened to meet my wife to buy food and go home. Although she entered the house, she said that she didn't sign for anything, that she didn't know anything, and that she couldn't sign for it casually and bear legal responsibility. Signing for the service receipt is only the means and evidence for the court to perform the legal service procedure, but most parties are unwilling to sign for it. At first, I thought it was enough to explain clearly to the client. Later, the judge who instructed us explained that the panic and fear of the parties were not directed at these documents, but the whole lawsuit. The more you explain, the more suspicious they become. This fear of litigation is very common among ordinary people. Regardless of whether he knows the law or not, for a person who may never be in contact with the court for a lifetime, the image of the court and the procuratorate may have been fixed as the epitome of impartial and impartial law enforcement, and the deterrent power of the uniforms of the two courts is indeed very strong.
In contrast, the communication between lawyers and courts is very smooth and does not require too much explanation. Both sides are silent and smiling. After all, they are all in the "rivers and lakes" and know each other. People who study law seem to like to define a kind of social relationship and a kind of behavior layer by layer, civil or administrative, criminal, contract or tort, contracting fault or improper performance of breach of contract, until the specific provisions in the legal provisions can be directly applied. In this line of thinking, the laws of various departments are also clearly stipulated, according to one side. Recently, the words "same body law" and "legal person" have become hot, and there are signs of trying to circle the same body law profession out of society. The law profession has its own rules. As an independent subject, it has a standardized way of communication (French) and a unified value system (fairness, justice, efficiency, etc. ), its own moral system (legal professional ethics), and even its unique way of thinking, temperament and even clothing. This professionalism is conducive to enriching the ternary society of "citizen-civil society-country" and promoting industry autonomy. However, unilaterally delineating the external boundaries of the same subject will inevitably strengthen the separation between law and other fields of society, and the consequences will be more serious for the discipline and professional field of law, which is highly applied and social. The dislocation and difficulty caused by the communication between the unincorporated person and the court mentioned above is an example.
Thus, the first paradox appeared. On the one hand, legal professionals become an independent isomorphic body, which is gradually distinguished from other groups. On the other hand, legal persons should interact and blend with people outside the circle. First of all, "the life of law lies not in logic, but in experience", and an excellent judge must be a person with rich life experience and profound experience. To some extent, the law is a tool. Judges are often compared to doctors. After a long period of professional training, in the face of various complicated social relations, they use their laws and jurisprudence to diagnose and find out the crux of the problem, prescribe the right medicine, and put forward fair and reasonable solutions, thus restoring a calm state. In the final analysis, the object of law is our social relations. Without social life and life experience, there is no place for law. Secondly, law is not equal to litigation, and justice is the last line of defense to safeguard justice. Most disputes in human society are solved through alternative dispute resolution mechanisms or at least first, and only a small part of them actually go to court. Even if litigation is adopted, take the grass-roots court where I practice as an example. In a simple civil and commercial case, the proportion of judgment, mediation and withdrawal is basically1:1. In all cases that can be mediated, the judge always tries to mediate first, so that both parties can reach an agreement or withdraw the lawsuit directly, and the judgment is really unsuccessful. Mediation is a project that comprehensively uses various ways to solve disputes. It is inseparable from the most basic jurisprudence, which integrates rationality and psychology. The judge is not absolutely independent of the disputes of the parties, but seeks the most suitable solution with them in a guiding way.
The second paradox is that, on the one hand, the parties avoid litigation and are afraid of litigation, on the other hand, the number of cases accepted by Chinese courts is among the best, both in total and per capita. The number and proportion of judges in foreign countries are far less than those in China, but the work pressure faced by such a huge court system is still very heavy. One potential reason may be that the alternative dispute resolution mechanism is not standardized and mature enough in China, especially in connection with judicial procedures. Many parties are aiming at the deterrent and coercive power of national judicial power to go to court. Non-governmental lending disputes often apply for seizure and preservation in procedure, put pressure on the other party with the authority of the court, and immediately withdraw the lawsuit after compromise.
From this perspective, the law is really far away from us, and people are both afraid and love the judiciary. This may be related to the characteristics of the law itself, but it is certain that the situation in developed countries is better. The development of the whole legal system is deeper there, but the judges who account for a very small proportion of the population have gained a high status and respect in developed countries, especially the nine justices of the Supreme Court of the United States have even become an important driving force for the rule of law in the United States. Lengthy judicial precedents also make the access of lawyers very strict and difficult, and the independence of the lawyer industry is obviously higher than ours. Nevertheless, the law is not in a dilemma. There are two important reasons. First, in order to avoid the monopoly of legal persons on the judiciary, Britain and the United States established the jury system at the beginning of the rule of law tradition, and in some cases, let ordinary citizens participate in the process of ascertaining legal facts. The people's jury system is also implemented in first-instance cases in China, but it is suspected of being ineffective in practice and has not received the due effect. Second, the amendments and precedents of great significance in the constitutional procedure have, to a certain extent, become the protection of civil rights and are vivid examples of legal publicity and education. Coupled with the good operation of the alternative dispute resolution mechanism, the court has accepted relatively few cases, and the awareness of citizenship and rights has almost become the endorsement of the law, and the fear of litigation lacks the soil for growth.
The professionalism of the law does not necessarily make the law far away from us. How to position our law really needs deep thinking. When bringing up a law, I hope people will think of not only solemn courts and complicated litigation documents and procedures, but also the wisdom of judges, the basic rights of citizens and social justice.