In recent years, a large number of books have appeared on the market that study judicial cases and summarize adjudicative rules. There are also books that study how judges think by studying judicial cases. But such books often plagiarize a judgment and then excerpt a paragraph from that judgment to tell you that this is the refereeing rules and this is the judge’s thinking. Just like the Supreme People's Court, it has just issued a judicial interpretation, and then it has issued an interpretation that is understandable and applicable to the market. The speed of publication and the thickness of the book are staggering. If you look at the content, it's nothing more than a patchwork of things and plagiarism from each other. The Supreme People's Court is like the creator of various judicial interpretations and their understanding and application. Therefore, we must have the ability to think independently and establish our own cognitive system, instead of following what others say.
For lawyers who often interact with judges, how the judges think is crucial. Of course, this does not mean doing what they like. The best book I’ve ever read on the subject is Posner’s How Judges Think, and such a thoughtful and nuanced book is rare in the Chinese market. As a person and as a legal professional, the judge has such a dual role. Different roles have different ways of thinking. How a judge thinks is the interweaving and interaction of the two ways of thinking under the control of the two roles. Therefore, how judges think actually involves many aspects of issues, not just a matter of pure legal cognition.
However, in this article, we can only discuss how judges, as members of the legal profession, think, and we can only say how they should think. For example, we can get some inspiration from the "Minutes of the National Courts Civil and Commercial Trial Work Conference" to understand what kind of thinking the national courts as a group are trying to shape for them. This is a **** for them. We You can think along these lines.
Part 2
The "Minutes of the National Court Civil and Commercial Trial Work Conference" pointed out: "Pay attention to dialectical understanding and accurately grasp the freedom of contract, equal protection, good faith, public order and good customs in civil and commercial trials. Basic Principles". Freedom of contract, equal protection, good faith, and public order and good customs are the basic principles of civil law and the basic concepts that can be constructed in the construction of civil law. They run through the legislation, judiciary, and law-abiding concepts of civil law. They are also constantly summarized and interpreted from civil and commercial judicial practice. and sublimated things.
What is emphasized here is "focusing on dialectical understanding and accurate grasp". The judge relies on specific rules in trial activities. For example, specific rules are mentioned on the premise of the syllogism, and the specific rules actually embody As "principle exceptions", "exceptions" should be determined by specific rules. As for "principles", some have been solidified into rules, and some are still within the principles. This presents a problem. Those who are still within the principles needs are revealed in the trial activities. This also raises a question, that is, those contents that are still within the scope of the principle need to be presented in the trial activities.
In addition, in the process of applying the law, problems of legal interpretation will inevitably arise. This is actually the reason why legal interpretation has become a universal issue, and it is also an issue that reflects how judges think about issues in trial practice. These issues not only arise in the trial of specific cases, but also need to be resolved in the trial of specific cases. For example, the legal methodology works we have seen all discuss the issue of legal application, especially the issue of legal interpretation in the process of legal application.
The direction of judges' thinking is "dialectical understanding and accurate grasp" of civil legal principles. Each basic principle of civil law has its scope of application and relatively certain legal connotation. Basic principles are always related to basic concepts. , basic principles and basic systems, it is also gaining relative certainty through civil legislative practice and judicial practice. It is also gaining relative certainty through civil legislative practice and judicial practice. For example, the continuous development and enrichment of the principles of good faith and public order and good morals in civil trials are also the result of judges’ thinking being connected with general social concepts and the continuous construction of a good society.
Part Three
The "Minutes of the Civil and Commercial Trial Work Conference of National Courts" pointed out: "Focus on establishing rights-based request thinking, logical value consistency thinking, and the same verdict for the same case. Through retrieval Unify judgment standards through similar cases, reference to guiding cases and other methods to effectively prevent the abuse of discretionary power." If the above part is still based on the concept of how judges think, then this part is realized at the specific thinking level of how judges think. What is reflected here is the judge’s conscious thinking on how to think about specific operations.
First of all, "basic thinking on litigation rights" is regarded as a thinking tool that legal professionals must master. As Mr. Wang Zejian said: "The basis for claiming rights is that everyone who studies law must thoroughly understand and truly master it." basic concepts and thinking methods". The Minutes of the National Court Civil and Commercial Trial Work Conference require judges to "focus on establishing the basic thinking of the right to claim" in civil trials, with the purpose of "effectively preventing the abuse of discretion." This is because thinking about the basis of the right of claim requires following a certain sequence and comprehensively examining whether the basis of the right of claim can be determined, so as to prevent hasty searching for the basis of the right of claim based on intuition. In this way, the parties can develop the habit of in-depth thinking and avoid missing any basis for the claim, thus effectively protecting the interests of the parties. Each type of basis for the right of claim has different constituent elements, statute of limitations, burden of proof, and legal effect. Each type of basis for the right of claim has a great impact on the interests of the parties involved. In fact, the basic thinking of claiming rights should be an essential tool for lawyers.
Secondly, "logical thinking is consistent with value thinking". Logical thinking is closely related to value thinking. The so-called logical thinking is that people actively use concepts, judgments, reasoning and other forms in the process of cognition. A rational cognitive process that reflects objective reality. Isn’t this the cognitive process required by judges to hear cases? Law is filled with various concepts, judgments, reasoning and other rational forms, all of which are restricted by logical rules. However, there is value beyond logic. In my opinion, value is mainly reflected in the judge’s trial experience. As Holmes said, the life of the law does not lie in logic, but in experience. However, based on our reality, judges should still strengthen their logical thinking training. Only by strictly examining their own thinking can we ensure the logical correctness of the trial. In order for the trial to be legitimate, value and significance need to be considered. In this way, the unity of logic and value can be achieved.
Thirdly, the "thinking of same case and same verdict", in fact, in any jurisdiction, the same case and same verdict should be taken as a matter of course to maintain the unity and authority of the legal system. However, this is not the case in judicial practice. It is common for the same case to be judged differently. In fact, if we strictly follow the basis of thinking and determine the basis of the claim, the constituent elements, the statute of limitations, the burden of proof and the legal effect of the case, it is not difficult to achieve the goal of having the same verdict for the same case. The measures summarized by the National Courts Civil and Commercial Trial Work Conference are: "unify adjudication standards by looking for similar cases, referring to guiding cases, etc." Of course, this may also be more feasible. This is to start from both legal norms and case facts. Only by comprehensively examining "same cases" or "similar cases" can we reach the same conclusion, that is, "same verdict."
Part 4
Minutes of the National Court Civil and Commercial Trial Work Conference: "Pay attention to the relationship between civil and commercial trials and administrative supervision, and find out the true nature of the parties through penetrating trial thinking. "Penetrating trial thinking" is a trial thinking based on the increasing number of cases and the true legal relationship between the parties. Penetrating trial thinking "is proposed in response to the increasing complexity of civil and commercial transactions. The increasingly complex transaction framework, the constantly renovated transaction model, the superposition and combination of different legal relationships, and the expression of true meaning are separated through multiple layers of appearances." "True" is getting further and further away, and the expression of meaning is just a false shell and loses its true value.
Especially in today's commercial transactions, sometimes in order to avoid supervision, models such as multi-layer nesting, circular transactions, and false expressions of meaning are adopted, resulting in situations where "the name does not match the reality", which artificially increases the number of transactions. It makes it difficult to ascertain the facts of the case and determine the true legal relationship. This requires "penetrating trial thinking". On the basis of accurately grasping the transaction model, we can analyze and peel off the legal relationships layer by layer, explore the true transaction purposes of the parties, and determine the true legal relationships. It can be seen that "penetrating trial thinking" still belongs to the scope of legal application. It is the projection of legal norms on the factual level of the case, making the legal relationship more realistic.
Part Five
The "Minutes of the National Court Civil and Commercial Trial Work Conference" pointed out: "In trial practice, it is necessary to accurately grasp the applicable boundaries of appearance doctrine and avoid generalizations and abuses. .""Judgements in trial practice should be based on relevant specific legal rules, and application by analogy should also be based on the circumstances and conditions stipulated in legal rules." This actually reflects that the court's decision is not based on legal rules. "This actually reflects the thinking of respecting the specific rules of statutory law. Appearance rights are based on the principle of reliance protection, but the protection of reliance interests is often reflected in a reconciliation of the conflict between appearance rights and actual rights, sacrificing actual rights to protect appearance rights , has achieved the purpose of maintaining transaction security. Therefore, it itself embodies an "exception" outside of "principles" and requires the regulation of specific rules.
The minutes of the National Court Civil and Commercial Trial Work Conference pointed out. It is very correct: "From the current legal rules, appearance doctrine is an exception set up to protect transaction security, and generally applies to appearance rights transactions that occur due to reasonable reliance on appearance rights or appearance expressions of intention. The relationship between the actual right holder and the nominal right holder should focus on the substantive ownership of the property, rather than relying solely on appearance publicity." This actually strengthens the legal status of legal acts as a tool of private law autonomy, and places more emphasis on the generation process of meaning. "Intention", and "expression" is determined as "exception" through specific rules. Find and maintain the "true expression of intention" of the parties in all aspects to maintain truth. Thinking and value orientation of legal relations.
Part 6
The "National Court Civil and Commercial Trial Work Conference" points out the direction for "how judges think". But in the author's opinion, This is also a guide for lawyers' thinking. For example, thinking about the basis of the right of claim is extremely important for how lawyers think. An important part of the indictment is to determine the "litigation claim", which requires thinking about the basis of the right of claim to play a role. Once a mistake is made, the consequences can be imagined. For example, if the same case has the same judicial thinking, it requires the lawyer to read a large number of judicial documents and conduct an exhaustive search for similar cases, and the judge will not do this work. , and this should actually be the job of lawyers.
Moreover, when we read the interpretation of the concept of civil trial in the "Minutes of the National Court Civil and Commercial Trial Work Conference", we will find one thing, that is, the tendency of civil trial. It also provides directional guidance for our participation in civil and commercial litigation.