(Bimonthly)
Vol. 42, No. 1, January 2020
CONTENTS
Review of and Reflections on the Orientation of the Reform of the People’s Courts Gu Peidong
An Empirical Study of Civil Litigants’ Legal Consciousness on the Basis of the Support Theory Feng Jing
The Criterion on the Abuse of Authority in Judicial Review···· Zhou Youyong
The Structure and Function of Prestation Judgment in Administrative Litigation
······························································································ Huang kai
On the Non-recourse Between Mixed Joint Security Parties········ Cui Jianyuan
The Non-binding Nature and the Revision of the Civil Admission System in China Duan Wenbo
Artificial Intelligence and the Proof of Fact··································· Li Zheng
Rethinking the Relationship Between Joint Offenders············ Zhang Mingkai
The Influence Mechanism of Compensation on Sentencing in Intentional Assault Cases Gao Tong
The Choice of Target Audience of Legal Studies and Its Impact
···································································· Zhou Xiang and Liu Dongliang
Basic Theory of and Constructing the Rules on Citation of Academic Opinions in Judicial Documents Jin Fengliang
Review of and Reflections on the Orientation of the Reform of the People’s Courts Gu Peidong
Abstract: The reform of the people’s courts has the implied orientation of conforming to the notion of the formalistic rule-of-law, the goal of which could be summarized as “make the judiciary more like the judiciary”. This reform, guided by an inward perspective, has a positive significance to shaping the elemental form of the Chinese judiciary and to completing the essential elements of the judiciary. However, it alienates the judiciary from social needs and concerns to a certain extent due to this orientation, making it difficult to fully transform the “dividend” of judicial reform into actual gains of society. According to the fundamental judicial theory in a reductionist position, the judiciary should be understood as a product of political construction and as a sort of public goods, and “consumer experience” should be recognized and respected in the provision of judicial services. From an outward perspective, the enhancement of judicial capacities should also be made one of the orientations of the court reform. In the future reform of the judicial accountability system, China should take the essential elements affecting judicial capabilities as the key points of the reform to realize the social functions of judiciary, satisfy the social demand on the judiciary, and “enhance the judicial capacity of the judiciary”.
Keywords: court reform; judicial accountability system; formalistic rule-of-law; judicial capacity
An Empirical Study of Civil Litigants’ Legal Consciousness on the Basis of the Support Theory Feng Jing
Abstract: Traditional legal scholarship focuses on the “supply side of law,” and endeavors to formulate good laws and establish better legal institutions. However, latest literature suggests that, despite the improvement of the profession of judges, citizens’ confidence in the judiciary has not increased, but declined instead. Based on the “support theory” and the “legal consciousness theory,” this article turns to the perspective of “demand side of law”. Through the interviews of 142 litigants of four common types of civil disputes, this article shows that litigants’ confidence in the legal system consists of two dimensions: specific support and diffuse support. Negative trial experience only corrodes their confidence in the presiding judge and the court, which is specific support. Such negative trial experience, however, has not weaken their diffuse support, namely their confidence in the court system and the judicial institution. This article further categorizes litigants into “laymen” and “adepts”, the former’s distrust in the court (or the presiding judge) stems from the sharp tension between their legal consciousness and the formal legal institution. By contrast, the latter’s legal consciousness is confined to the formal legal system and merely concerns the quality of the trial. Thus, with the improvement of the judicial system, the adepts’ confidence in the judiciary probably would be enhanced. However, the laymen should be first transformed into adepts through “the informed and benefited process” before their confidence in the judiciary can be enhanced along with the improvement of the judicial system.
Keywords: legal consciousness; judicial credibility; judicial reform, specific support; diffuse support
The Criterion on the Abuse of Authority in Judicial Review···· Zhou Youyong
Abstract: A case study based on the Gazette of the Supreme People's Court shows that there are two distinct logical means of identifying the abuse of authority by administrative organs in China, each with its own application range, identification conditions and value orientation: the separative identification and conjunctive identification. According to the former, which is based on formal illegality review, any illegal duty behavior may be seen as abuse of authority, as long as one of the two elements (“authority” or “abuse”) can be proved, whereas according to the latter, which is based on substantive illegality review, in order for an act to constitute abuse of authority, both the “authority” element and the “abuse” element have to be proved, and the abuse of authority is actually an abuse of discretion. The separative identification is closer to ordinary life, while the conjunctive identification is more compatible with the spirit of administrative litigation law in China. The difficulty in identifying the subjective fault may affect the judicial application of the criterion on the abuse of authority. China should adopt the functionalist position instead of legislation-centered doctrine, and apply a balanced legal principle and functional self-regulate technique to reduce the difficulty of identification of subjective motivation of “abuse”.
Keyword: abuse of authority; judicial review; administrative discretion; functionalism; discretion criterion
The Criterion on the Abuse of Authority in Judicial Review···· Zhou Youyong
Abstract: A case study based on the Gazette of the Supreme People's Court shows that there are two distinct logical means of identifying the abuse of authority by administrative organs in China, each with its own application range, identification conditions and value orientation: the separative identification and conjunctive identification. According to the former, which is based on formal illegality review, any illegal duty behavior may be seen as abuse of authority, as long as one of the two elements (“authority” or “abuse”) can be proved, whereas according to the latter, which is based on substantive illegality review, in order for an act to constitute abuse of authority, both the “authority” element and the “abuse” element have to be proved, and the abuse of authority is actually an abuse of discretion. The separative identification is closer to ordinary life, while the conjunctive identification is more compatible with the spirit of administrative litigation law in China. The difficulty in identifying the subjective fault may affect the judicial application of the criterion on the abuse of authority. China should adopt the functionalist position instead of legislation-centered doctrine, and apply a balanced legal principle and functional self-regulate technique to reduce the difficulty of identification of subjective motivation of “abuse”.
Keyword: abuse of authority; judicial review; administrative discretion; functionalism; discretion criterion
The Structure and Function of Prestation Judgment in Administrative Litigation
······························································································ Huang kai
Abstract: Recently there has been a trend in judicial practice towards amplified interpretation of prestation judgment, which could lead to an overlap of application between prestation judgment and other similar judgments and prevent the full realization of the legislative purpose of the new judgment system established by the revised Administrative Litigation Law. The dual purposes of Administrative Litigation Law, expressed as "overseeing administration - dispute settlement", have led to a judicial review intensity system with different intensity modes of judicial review, namely "low intensity review mode - high intensity review mode". As a result, courts should distinguish procedural judgments from substantive judgments. In principle, enforcement judgment can only be procedural judgment, while prestation judgment has the system function of establishing a mode of substantive judgment aimed at making up for the deficiencies of enforcement judgment. At the current stage, prestation judgment is still unable to fully realize the function of "multi-purpose weapon" envisaged by many scholars and judges and its applicable situation should be limited to special areas meeting the following three conditions at the same time: the obligation is stipulated by laws and regulations; the obligation is within the scope of supply administration; and the obligation takes money or property as its content.
Keywords: prestation judgment; provision obligations; substantive judgment; dispute settlement
On the Non-recourse Between Mixed Joint Security Parties········ Cui Jianyuan
Abstract: When the same creditor's right is guaranteed by several security measures, the question of whether the guarantors have the right of recourse against each other should be determined according to the circumstances in each case. In the case of joint guarantee and joint mortgage, there may be a right of recourse; in the mixed joint guarantee relationship, there should be no right of recourse between the guarantors on real right, or between guarantors on real right and obligational guarantors, unless otherwise agreed upon between the parties or provided by law. The opposite view should not be adopted, because it does not conform to the current laws and legal principles of China at the level of interpretation, and fails to prove that there is a common relationship among the obligations of guarantors at the level of legislation. It also fails to take into full and equal consideration all the guarantors in the process of interest measurement, improperly limits the function of the principle of autonomy of will, does not bring the principles and rules of debt relativity and self-responsibility into the trade-off, focuses only on a single transaction relationship, and ignores the fact that various sub-transactions in a series or a group of transactions are closely linked to each other and specially and coherently arranged. Its so-called concept and standard of fairness and the expectations of the parties obviously have the subjective preference of the interpreter and do not seem to be neutral. As for the practice of taking efficiency as the basis of the right of recourse, it deviates obviously from the correct path.
Keywords: mixed joint security; the right of recourse; autonomy of will; expectancy of parties; principles of fairness; efficiency
The Non-binding Nature and the Revision of the Civil Admission System in China Duan Wenbo
Abstract: In 2001, China established a civil admission system modelled on the similar institution in the common law system. However, the establishment of this system was not a link in the transition of the litigation system towards the adversary system, but a means for enhancing litigation efficiency and simplifying adjudication for the court. From the perspective of litigation and judicial practice, this system is a non-binding system, characterized by generalization of application objects, broadening of the scope of application, and unilateralization of the binding force. This system not only fails to realize its function of enhancing dispute resolution, but also leads to the tendency of the parties to entirely deny the opposite party’s statements and the suppression the active debate. The issue contraction function of the admission system is also lost. From the perspective of the convenience of transplantation and the similarity of legal systems, the admission system may be improved only by referring to the experience of the civil law system and basing on the principle of party presentation. Under the new two-phased adjudication model, which takes issue clarification as the center, the admission should be limited to the issue clarification procedures and concerned with material facts and important collateral facts. It should also emphasize the parties’ will of excluding issues, so as to safeguard the parties’ right of free expression and active debate.
Keywords: exclusion effect of adjudication; principle of party presentation; issue determination; material fact; collateral fact
Artificial Intelligence and the Proof of Fact··································· Li Zheng
Abstract: The deep integration of artificial intelligence and justice is embodied in both the application of law and the proof of fact - the latter is a precondition of the former. To intervene in the proof of facts in a case, artificial intelligence needs to digitize the evidence, integrate the data, and output conclusions that can be understood by human beings. In the link of digitalization of evidence, it is necessary to carry out structured data transformation of evidence and overcome language problems. In the link of data integration, artificial intelligence mainly uses probabilistic reasoning, rather than causal reasoning, as its logical reasoning mode and needs to face two major problems of computability and complexity in its algorithm. In the link of conclusion output, it needs to solved the problems of how to deepen machine learning, how to build belief, and how the machine expresses itself. The main problems faced by the integration of artificial intelligence into the proof of fact in cases can be solved through "little data" training and the gradual building of "mind-microstructure" of artificial intelligence.
Keywords: artificial intelligence; proof facts; mind-microstructure; little data
Rethinking the Relationship Between Joint Offenders············ Zhang Mingkai
Abstract: Which participants in criminal offences are joint offenders prescribed in the General Provisions of the Chinese Criminal Law and how to create distinct categories (forms of participation) of joint offenders are two different questions. Although four forms of participation in a crime, namely as principal, accomplice, coerced accomplice and abettor, are provided for in the General Provisions of the Criminal Law, they should not be regarded as the categories of joint offenders. The criminal law theory should determine the forms of participation prescribed in the General Provisions of the Criminal Law on the basis of the principle of legality. Since the Specific Provisions of the Criminal Law provide for criminal offences committed by principals, only when the General Provisions of the Criminal Law provide that the act of abetting and aiding the commission of a certain crime constitutes a joint offence, can such act be punished in an expanding way. Otherwise, the punishment would contravene the principle of legality. Since the determination of joint principals does not take an act of constitutive element as the premise, the punishment of a joint principal as principal must be based on explicit stipulations of the General Provisions of the Criminal Law. The viewpoints holding that the prime perpetrator and the principal provided for in Article 26 of the Criminal Law are in a crossing-cutting, progressive, or equivalence relationship, or in a double-layered differentiating system all have theoretical defects. Article 26 of the Criminal Law should be deemed as an article on joint principals that embodies the theory of “full responsibility for partial act”. For those who intentionally induce others to commit a crime, if they plays a major role in the joint crime, they should be considered as joint principals acting on a common plan and be sentenced as principals; if they play a secondary role in a joint crime, they should be considered as abettors and be sentenced as accomplices. Based on the substantive standard, those who play a secondary role in a joint crime can only be sentenced as accomplices.
Keywords: joint offenders; the principal; joint principals; the abettor
The Influence Mechanism of Compensation on Sentencing in Intentional Assault Cases Gao Tong
Abstract: Compensation is a discretionary factor that has an important influence on sentencing in criminal justice. According to an analysis of nearly 3,000 criminal judgements of intentional assault cases, the compensation by the defendant has an important influence on the application of both the principal penalty and probation in criminal justice. With the increase of the severity of crime, the influence of compensation on sentencing and application of probation decreases drastically, while the influence of reconciliation on sentencing increases rapidly. Although the circumstances which may reflect the defendant’s repentance, such as “the time of compensation” and “the willingness of compensation”, have no significant impact on the application of principal penalty in judicial operation, they can significantly increase the application of bail and probation. Circumstances such as “the severity of the crime”, “the defendant’s economic condition” and “the time of compensation” have marked impact on the amount of compensation when the defendant and the victim reach a settlement, while such circumstances as “criminal causality”, “excessive defense” and “the victim’s fault” have no significant impact on the amount of compensation in the agreement. Influenced by the utilitarian thinking of sentencing, the current influence mechanism has high risks of being out of control, such as the over-amplified effect of the compensation on sentencing, the unfair difference in treatment between rich and poor defendants in criminal procedure, and the over-amplification of irrational factors in the mechanism for the determination of amount of compensation in the settlement between the defendant and the victim. To prevent the above risks, China should take such measures as properly restricting the influence of compensation on sentencing, paying more attention to the time and the amount of compensation and the economic condition of the defendant, and perfecting the national compensation system and the public legal service system.
Keywords: compensation; reconciliation; sentencing
The Choice of Target Audience of Legal Studies and Its Impact
···································································· Zhou Xiang and Liu Dongliang
Abstract: For whom articles are written is a basic question of legal studies. The results of big data machine learning of about 25,000 core journal articles of law in the past twenty years show that the legal research in China has displayed a multi-objective pattern, with nearly 30% of the articles written for law enforcement agencies (including administrative organs and judicial authorities), while some others making suggestions and recommendations to lawmakers and the government. According to the correlation test, the choice of the target type affects the dissemination ability of a paper and its author’s opportunity of obtaining fund support. Sooner or later, this mechanism for determining the impact of research outcomes will be learned by individual researchers, continuously strengthened, and become the decisive factor in the researchers’ choice of their research goals. The key to the well operation of this mechanism is to maintain a good relationship between the academic circle and the practical realm and to keep the necessary and sufficient autonomy of academic research. Especially, we should maintain sharp vigilance against the tendency of academic circle being highly administrativized or even "cognitively captured" by relevant subjects in the pursuit of publication and financial support.
Keywords: legal study; law journal; big data; research aim; evaluation system
Basic Theory of and Constructing the Rules on Citation of Academic Opinions in Judicial Documents Jin Fengliang
Abstract: The essential legitimacy of the content of academic opinions and the possibility of limiting judges’ discretion and enhancing the acceptability of judicial documents through such opinions are the fundaments of the citation of academic opinions in judicial documents. They are also the starting points of the establishment of rules of citation. According to their power of influence, academic opinions can be divided into general opinions, prevailing opinions, and minority opinions. Judges have the discretion to decide whether to cite a general opinion or a non-general opinion. Citation of non-general opinions should be encouraged as the main trend. When citing academic opinions in judicial documents, it is advisable that judges adopt a dialogue technique, avoid long paragraph copying and pasting of general opinions, and cite different genres of representative works to demonstrate quantity advantage as far as possible. Scholars’ names have the functions of identifying and assuring the quality, goodwill and judicial rhetoric of the academic opinions and the origins of academic opinions have the function of showing the development process of the academic opinions of scholars. Therefore, the citation of a scholar’s academic opinions should indicate the scholar’s name and the origin of the opinions. In essence, citations of academic opinions in judicial documents are judges’ “purchase” of academic products, which will stimulate scholars to actively produce academic products to meet the demand of practice, thus promoting a positive interaction between the academic and the practical circles. The Supreme People's Court may consider formulating certain guidelines on the citation of academic opinions in judicial documents.
Keywords: judicial document; acceptability; citation; academic opinion; general opinion; non-general opinion
