Overall justice and individual justice have two meanings: first, judicial justice should be justice for all members of society or justice for individual members of society. Second, judicial justice should be justice in the overall sense of judicial activities, that is, universal justice, or justice in the individual sense of judicial activities, that is, case justice. When people choose or tend to holistic justice or individual justice, they actually express the value orientation and orientation of judicial justice
On April 20 15, the general offices of the General Office of the Central Committee of the CPC and the State Council issued the Implementation Plan for Further Deepening the Reform of Judicial System and Social System. Of the 84 reform tasks covered by the Implementation Plan, 48 are related to "ensuring fair justice and improving judicial credibility".
We will promote the reform of the trial-centered litigation system, implement the lifelong responsibility system for handling cases and the accountability system for misjudged cases, and improve the system of people's jurors and people's supervisors ... The implementation plan proposes to speed up the construction of a fair, efficient and authoritative socialist judicial system, improve the judicial management system and judicial power operation mechanism, standardize judicial behavior, strengthen supervision over judicial activities, ensure fair justice, and improve judicial credibility. The primary problem facing judicial justice is how to determine the standard of justice. Different societies, different groups and different times may have different concepts of judicial justice. So, how is this concept determined or formed? Here, people inevitably face different conflicts of interest, such as the conflict between the overall interests of society and the personal interests of social members, and the conflict between the personal interests of different social members. How to balance these interests has become a difficult problem in front of judicial justice.
Personal interests include economic interests, life safety, power status, reputation and so on. The interests of the whole society include economic development, civilization progress, social peace and public order. In some cases, personal interests can be consistent with the overall interests of society, but in some cases, personal interests are in conflict with the overall interests of society. For example, the economic interests of individuals cannot be completely divorced from the interests of the whole society. Only when the social economy develops can individuals become rich. It is impossible for a person to get rich completely out of society. However, when all members of society can't get rich by "marching in a hurry", one's economic interests will inevitably conflict with those of others and even the whole society.
In judicial activities, due to the special status of the parties, their personal interests often conflict with the interests of other members of society and the overall interests of society. On the issue of how to coordinate this contradiction and conflict, different countries have adopted different attitudes when establishing judicial systems. Some countries emphasize giving priority to protecting the overall interests of society in judicial activities; Some countries should give priority to protecting individual interests in judicial activities.
One of the differences between eastern and western cultural traditions lies in the value orientation of group interests and individual interests. Eastern countries have a tradition of value orientation that group interests are higher than individual interests, so it is natural for a person to sacrifice personal interests for national interests, community interests or family interests, which is worth encouraging and advocating. On this issue, western countries tend to adopt a value orientation that tends to personal interests, and the United States is undoubtedly the most representative country.
Americans adopted an attitude of emphasizing personal interests when establishing the judicial system. They believe that the individual is the basic unit of society, and personal interests are the concrete embodiment of social interests. Without personal interests, social interests will cease to exist. Therefore, the judicial system must first protect personal interests and must emphasize the protection of personal interests. Specific to criminal proceedings, they believe that the defendant is the main representative of personal interests, while the prosecutor is the main representative of social interests. Because the defendant is often in a weak and disadvantageous position in court, special emphasis must be placed on protecting the defendant's rights and interests in the process of criminal proceedings, otherwise the balance between these two conflicts of interest cannot be maintained.
Judicial justice is based on a certain social value, so the judicial justice determined by different countries based on different cultural traditions will inevitably reflect this value orientation and orientation, that is, it tends to be overall justice or individual justice in judicial activities. In this regard, this article will do further discussion later. A problem related to personal interests and the overall interests of society is the positioning of judicial justice between protecting human rights and combating crime. Of course, this is mainly a problem in criminal proceedings. According to this different orientation, some foreign scholars divide the criminal justice systems of different countries into two categories: one is the criminal justice system that protects human rights, that is, the criminal justice system that pays special attention to protecting human rights; The other is the crime-fighting type, that is, the criminal justice system with special emphasis on the crime-fighting function. Admittedly, this classification is not very accurate, but it also reflects the value orientation of different societies in judicial justice from one side. In a sense, the criminal justice system for protecting human rights is based on emphasizing individual justice; The criminal justice system to combat crime is based on the pursuit of overall justice.
As far as the criminal justice system is concerned, the focus of protecting human rights is of course to protect the basic rights of defendants or criminal suspects. There was a very famous case in the United States in the 1960s. In that kidnapping and robbery trial, one of the main evidences of the prosecution was the confession of the defendant Miranda to the police. Later, the Arizona court convicted the defendant Miranda of kidnapping and rape. Miranda refused to accept the verdict and appealed to the Supreme Court of the United States, claiming that when she was questioned by the police, she did not know that she had the right to meet a lawyer, nor did she know that what she said to the police would be used as the basis for conviction by the court, so she pleaded guilty against her will. 1966 After deliberation, nine justices of the Supreme Court passed a resolution by a vote of 5 to 4, revoking the judgment of the Arizona court, and stipulated that the police must inform the arrested person of his rights according to law before interrogating him, including the right to meet a lawyer and the right to remain silent, otherwise the confession obtained by the police after that shall not be used as evidence in the trial. Although in this case, two rape victims correctly identified Miranda as a criminal in mixed identification, and although there are other evidences that can indirectly prove that Miranda is a criminal, the US Supreme Court would rather take the risk of indulging criminals in order to limit the power of government officials. Later, this rule was called "Miranda advice" (or "Miranda warning") rule, which was widely used in law enforcement and judicial practice in the United States.
Undoubtedly, too much emphasis on protecting the rights of criminal suspects or defendants will affect the efficiency of the criminal justice system and the efficiency of combating crime. As we all know, drugs, violence and other crimes are rampant in the United States, and it has been difficult to get rid of the label of "crime kingdom". Of course, there are many social factors, but the criminal justice system in the United States places too much emphasis on the protection of human rights, which is obviously an undeniable reason. Needless to say, in the past, the protection of the basic rights of criminal suspects and defendants in China's criminal justice system was not enough. Therefore, in today's pursuit of judicial justice, we should pay attention to strengthening the protection of the basic rights of defendants and criminal suspects. But we should also avoid another tendency and learn from the lessons of the United States. We can't sacrifice the basic needs of fighting crime for the good name of human rights protection. The criminal justice system is not a detached arbitration institution, it shoulders the mission of fighting crime and protecting people.
It is true that, as far as the actual situation in China is concerned, we should formulate practical measures to protect the rights of defendants and criminal suspects in judicial activities. At the beginning of the new year in the Supreme People's Procuratorate 1999, China, prosecutors at all levels were publicly required to inform the other party of their rights according to law when interrogating criminal suspects or defendants in the investigation stage of criminal cases, including the right to obtain legal aid, the right to hire lawyers and the right to refuse to answer questions irrelevant to the case. Admittedly, this rule is not equal to the "Miranda advice" rule with the United States, but it obviously absorbs some reasonable factors. The author believes that this is an important measure for China's judicial system to move towards fair justice. As far as the second meaning of overall justice and individual justice is concerned, the author thinks that legislative justice mainly pursues overall justice, that is, universal justice of law; And judicial justice mainly pursues individual justice, that is, legal case justice. Judicial activities are carried out around specific cases, and the pursuit of judicial justice must start with specific cases.
An investigator once told me that what they are most afraid of when handling a case is cooking. I searched my home and arrested some people. I have all the necessary means and all the clues I should check, but I just didn't get anything excellent. What did you say?/Sorry? Letting people go is a serious suspect. Don't let go, but can't explain. This is called: riding a tiger is difficult, in a dilemma!
The author thinks that the attitude of the investigator is still very sincere and serious. Insensitive and irresponsible people may never feel embarrassed about it. Since I don't know exactly how they got on the tiger, naturally I can't comment on whether they should ride the tiger or not, just talk about the tiger. However, this is indeed a thorny issue. Moreover, not only investigators but also prosecutors and judges will encounter this problem. In fact, it involves a pair of contradictions that are common in criminal judicial activities, that is, the contradiction between "dislocation" and "misjudgment".
As mentioned above, criminal cases are facts that happened in the past, and judicial personnel can't directly perceive them, but can only indirectly understand them through various evidences. Due to the influence and limitation of many factors, it is difficult for judicial personnel to ensure that this understanding is 100% accurate. Therefore, whether investigators or pre-trial personnel, whether prosecutors or judges, they will inevitably make mistakes in determining the facts of the case. This is proved by both theory and practice.
Judging from the objective results of handling cases, there are two kinds of mistakes: one is to treat the guilty as innocent. Therefore, those who are arrested are not arrested, those who are closed are not closed, those who are prosecuted are not prosecuted, and those who are sentenced are not sentenced. In short, they indulge the bad guys. In another case, innocent people are considered guilty and good people are wronged. For simplicity, we can call the former "dislocation" and the latter "misjudgment".
Judging from the subjective state of the case handlers, there are two kinds of mistakes. One is that the case-handling personnel think that their understanding of the facts of the case is correct when making a decision, but later practice proves that their understanding at that time was wrong. Another situation is that when handling a case, the case-handling personnel know that their understanding of the facts of the case may not be completely correct, but they still arrest people and sentence them, and the result proves that they are wrong.
So in the latter case, that is, the case-handling personnel are not completely sure whether the suspect is a criminal or not, what should they do? This is really a dilemma. Left unchecked, it may condone the bad guys; In a word, a good man may be wronged. Of course, some people will say, keep investigating and when to find out. However, limited by objective conditions such as manpower, financial resources and time, it may be just empty talk or wishful thinking to continue the investigation. To illustrate the problem, we might as well set the conditions more harshly: the case handlers here have no absolutely safe middle way, and they must choose between the risk of "misplacement" and the risk of "misjudgment". Undoubtedly, different people will have different choices, and the result of this choice largely reflects people's concept of judicial justice.
It must be admitted that our tradition or habit would rather "misjudge" than "misplace". It is true that both legally and morally, we are firmly opposed to the slogan "We would rather kill 3,000 by mistake than let one go", but it is also difficult for us to accept the western view that "we would rather make ten mistakes than judge one". Psychologically, we are extremely reluctant to let guilty people escape punishment, not to mention that criminals may continue to endanger society! As for innocent people being wrongly investigated or punished, we are more open to it. Of course, we will apologize and sympathize with them and even give them some compensation when necessary.
Some people think that letting guilty people escape punishment is harmful to social interests, and letting innocent people be wrongly punished is harmful to personal interests. Compared with the two, the latter is less harmful than the former. In other words, if there must be mistakes, then the consequences of this mistake are of course best borne by individuals rather than society. Social interests are higher than personal interests, which leads to the topic we discussed before.
Some people think that people who are "wrongly judged" must have their own problems. Since the public security bureau arrested you, the procuratorate sued you and the court sentenced you, then you must be "at fault." Flies don't bite seamless eggs! Even if you didn't do this case, you must have something else. As a result, some people assert that "there is no wrong case in criminal cases."
The author does not object to the subordination of individual interests to collective interests. However, people made a "calculation error" when comparing the hazards of "dislocation" and "misjudgment". In fact, "dislocation" is just a mistake, and "misjudgment" is probably two mistakes. "Dislocation" only puts a guilty person into society by mistake, and "misjudgment" punishes an innocent person by mistake, and may also condone a real criminal. It can be seen that "misjudgment" is more harmful than "dislocation". When the case handlers are "not sure", they would rather be "misplaced" than "misjudged"!
There is also a problem of "calculation", that is, how to calculate the percentage of misjudged cases. On the whole, if a court handles 100 cases and only one case is misjudged, then the misjudged case rate is1%; But as far as the parties involved in the wrong case are concerned, there is one involved and one wrong case, and the rate of wrong case is 100%. People's attitude towards this issue reflects to some extent their differences in the choice of overall justice and individual justice, and further reflects people's value orientation and orientation on judicial justice.
To sum up, the realization of judicial justice needs the concern and efforts of the whole society. As far as the judicial system is concerned, on the one hand, it is necessary to establish judicial independence and due process to ensure judicial justice, on the other hand, it is necessary to improve the professional quality and handling ability of judges and other judicial activities. We should learn from the experience of other countries in the world to ensure judicial justice, but the author does not agree to put forward the slogan of "connecting with the international" on the issue of judicial justice. As long as the people of China join hands and make joint efforts, we will certainly be able to establish a scientific and reasonable judicial justice system and corresponding guarantee mechanism that conforms to China's national conditions and has China characteristics.