论法官的法律思维特性（On the legal thinking characteristics of judges）

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1、论法官的法律思维特性（On the legal thinking characteristics of judges）On the legal thinking characteristics of judgesLv Zhongmei, Professor of Zhongnan University of Economics and LawFor judges, they should have different ways of thinking than those of other legal professionals. The judge thinking is the uniqu

2、e judge occupation skill premise, is the supplement judge occupation autonomy or autonomy, is the judge that occupation ethics inheritance, is the judge qualification examination subjects, is the necessary quality of the title of the judge.The judges occupation of rational thinking, autonomy as the

3、consciousness, idea or attitude, which is the freedom of thought, the rational thinking characteristics is obtained by the professional training, so it is not only very special, but is different from other provisions of the internal quality of occupation. The law thinking is summarized as five kinds

4、: the use of legal terminology, observation, thinking and judgment; thinking through the program, according to the past to see the habit, much more safe or conservative; pay attention to logical, cautious emotional factors; only the pursuit of the program it is different from the scientific truth in

5、 judgment; the conclusion is always different from the political thinking either this or that, the trade-off characteristics. Some scholars have summed up the thinking of jurists as independent thinking, conservative thinking and respect for law thinking in three aspects. I thought the dead judge ch

6、aracteristics at least from the following aspects:I. transformative thinkingThe transformation characteristic of judge thinking comes from the special status and function of judicature. Judicature has the special position of balancer in the political and social system; or, as a basic fulcrum of main

7、taining social order, judicial plays the function of reproduction. This function focuses on the courts and their litigation and judicial activities as the center of the judicial system. Society happens in almost any kind of contradictions and disputes, despite the variety of decisions still cannot b

8、e solved and contains risk have a significant impact to the stability of the political and social system, can eventually be absorbed by litigation, trial or neutralization. In any other decision, litigation and trial may become the object of their trial, and the judgment of the end is no longer subj

9、ect to any review, which is final in the sense of finality. Through litigation, trial, despite the controversy or conflict itself may not be really solved, but because the judicial power has such as general problem into individual problems, the value problem into the problems such as special propert

10、ies and methods, due to the occurrence of disputes or conflicts and may bring significant impact to the social and political system legitimacy has been disperse or relieve.Because of the function of justice or litigation, it requires that the thinking of judges be transformed, and each judge must ma

11、ster the skills and skills of transformation. Transformational thinking, of course, requires the judge to observe, think and judge in legal terms. They are asked whether they come from any place, whether concrete or abstract, ambitious or trivial, to translate French and French into legal questions.

12、 Even the difficult questions of political economy and social transformation, it is entirely possible to make it into a clear relationship between rights and obligations to deal with the dead to become legal issues before the court.The legal activity is less affected by the fluctuation of drastic ch

13、anges in social life, and is restricted by legal discourse practice within the group, even if there is a change in the law, the existing knowledge and practice of traditional inheritance will also make laws and legal activities to maintain the continuity of considerable. Do not know how to use legal

14、 terminology is not to judge, so the judge should first learn to think in the legal term, legal issues, will learn all kinds of social problems and religious issues and political issues into legal terms or concepts of expression, and in accordance with the laws of logic judgment.Two, balanced thinki

15、ngBalancing all kinds of contradictions and conflicts of interest, maintaining all kinds of interests within the framework of the legal order, and ensuring security is one of the basic values of justice and an important characteristic of the judges thinking. In order to ensure the safety of the peop

16、le and property of all members of the society, their energies are not consumed by too much worry about self-protection. As for disputes and conflicts between individuals and societies, or between individuals and individuals, legal norms are provided with means of peaceful settlement. In a variety of

17、 standard systems, the rules of law merely provide for a certain limit, and individuals or groups of conflicting interests must not exceed this limit in the fight against non violent forms. The constitution is on the political system and the national rules of the system of civil law is about the rul

18、es of the market economy, these rules have acknowledged the existence of conflicts of interest between different subjects, but must ensure that this conflict is only in a peaceful manner. Once a particular dispute arises,It is settled by a court that respects both its authority. Obviously, there is

19、a wide range of social interests in this kind of security. In the field of criminal law, the state organs usually prosecute the criminals in the name of the government or the state. The implementation of many other laws depends on the victims claim for damages, damages and appeals. In most cases, ju

20、dicial law can indeed guarantee to help and protect them properly and pay the necessary compensation, and compensation for victims of violations can in turn prompted appropriate and sufficient damage to seek legal protection. In such a process, through its special judicial procedure rules and legal

21、language, all kinds of conflicts of interest in daily social life into the scope of legal norms, the case, the legal protection of various interests to protect social security, transaction security and personal safety. The judge as individual cases judge, of course, according to the rule of law has

22、been, for all kinds of interests conflict are judged by the confirmation of facts and the application of the law, the imbalance of social order was restored to a state of equilibrium.Because the judge is engaged in the work of judging the existing contradictions and conflicts according to the existi

23、ng laws, he must also use the legal terminology to consider in the process. So the judge in the way of thinking for the analysis of legal issues should be in accordance with the principle of precedent and interpretation of applicable law, to ensure the stability and predictability of law, and not ar

24、bitrarily change the legal rules and legal principles. That is what is usually said to be more secure and even conservative. Because the procedure is autonomous, all activities (including thought activities) within it are regarded as past and may be identified as valid. This is the program itself de

25、termines the necessity of litigation the plaintiff and defendant to set its attack and defense is to exclude any dead promote rational choice, and ultimately help the judge and conclusion. Therefore, the defendant in the original court judge must listen to different opinions, do both that the judge

26、should continue to find the best solution from the opposing views, through the explanation and demonstration of the program to make it become a consensus decision or normative validity. A middle course this way is not simple, nor unprincipled compromise and the formation of the unique equilibrium, b

27、ut only after special occupation training after the formation of the qualifications of judges - technical rationality.Three, regular thinkingThe regular thinking of judges is the basic requirement to realize the function of judicial maintenance of legal order. The so-called legal order is such an or

28、dered state, it is shown that the human in the establishment of a political or social organization, in order to prevent confusion can not control and establish a suitable order form for the survival and development efforts. Order always means the stability of a certain degree, the consistency of str

29、ucture, the regularity of behavior, the continuity of process, the predictability of events, and the security of personal property. In real life, the destruction of the existing order is always accompanied by the existence of human society. Even in an effective framework of legal order, violations o

30、f norms will be very frequent. In fact, any order is often destroyed and the conflict will not be eradicated. Without conflict, society will become sluggish and perish. The purpose of social development is not to eliminate conflicts, but the key is to make appropriate adjustments to conflicts so tha

31、t conflicts can not often be dealt with by violence that will destroy society as a whole. Therefore, when order is destroyed by conflict, in order to avoid falling into completely out of control disorder and confusion, there must be some means to restore it. Trial is such a means. Although in the sp

32、ecial period, when the big guns laws are silent; but in peacetime, under normal circumstances, between individuals, between legal persons and government between the conflicts and contradictions, the best effective way or national force in law and justice.The judiciary is the judge the rule of law as

33、 the standard for judging the dead peoples behavior so the dead legal rules and logic of course has become the indispensable content of the judge thinking. Regular thinking requires the judge to pay attention to careful logic and to deal with emotional factors carefully. Although regular thinking do

34、es not absolutely exclude affective factors, it has strict boundaries with the emotional tendencies of moral thinking and religious thinking. Moral thinking is a thinking activity center for the evaluation of good and evil, and legal judgment is based on facts and rules as the center of thinking, so

35、 first of all is to obey the rules of legal thinking rather than first listen to emotion. Judges also have feelings and defend feelings, but they need to be carefully considered in terms of the rules of law, and under the support of legal terminology.Usually the dead rules thinking methods are based

36、 on the form of syllogism,This does not mean that the argument of the official must be mechanically maintained in a formal and logical manner. On the logic of syllogistic reasoning is mainly in order to launch legal decision reasonable, and explanation and demonstration of the reasons for decisions,

37、 so that the parties and the whole society to see this conclusion is from the rational, to make it convincing. It is impossible for legal reasoning to arrive at an inevitable conclusion that is universal. Therefore, the appropriateness of a legal decision depends on the degree to which the parties a

38、nd their agents freely engage in adversarial discussions.Four, procedural thinkingProcedural justice is the essential characteristic of judicial justice is an important goal of the dead judge thought. There is a saying in the West: the life of law lies in its application. This is exactly the same as

39、 the classical writers statement that the trial procedure is the manifestation of the internal life of the law. A fact that both of them reveal is that the law is first as a type of practical reason of human knowledge system, which requires it to be able to meet the practical demand, and the value o

40、f all the legal system is to some social demands. Obviously, the law of the text and the idea of the law can only be realized through its actual operation. Radbruch once pointed out, if the law is understood as the form of social life, then the procedural law, which is the law of the form, is the fo

41、rm of this form. Any form is undoubtedly more flexible and variable than the entity, and according to it, the law of procedure, like the masts of the masts, makes a strong wobble to the slightest motion of the ship. In the process of development process, by contrast very clear gradually changes in s

42、ocial life.From the point of view of the trial procedure in practice existing in the system, which is mainly embodied in the following aspects, one is for arbitrary restrictions; second is the guarantee of rational choice; third is the link between the state and citizen individual function; the four

43、th is the reflection of the characteristics of integration. From the first aspect, trial as arbitrary restrictions is clear and the rights, responsibilities and interests through the role of program participants, to carry out their duties and mutual restraint, so as to reduce the occurrence of any r

44、oom, a limit which is actually on the absolute right and the absolute power of the judge. From second aspects, the trial procedure through the immobilization process, which will be a kind of uncertain outcome into a process to determine the binding force of attention, certainty and results to streng

45、then this choice. From third aspects, the justice of the procedure of similar filtering device through its settings, the requirements of citizens in the past through the legal process of precipitation and feedback, and ultimately become a fact of social life in the future, this is actually the moder

46、n legal system to the world of life penetration a minimum cost approach. From the last aspect, judicial procedure as institutional process of negotiations, it is through the formation of legal resolution process of reflective integration, not only can play the role of the flexibility of program, so

47、as to make up the defect of substantive law function, on the other hand, through legal procedures, to prevent excessive risk free judiciary caused the law and eliminate the uncertainty over the open.Procedural thinking requires the judge to pursue only the truth in the procedure, not the truth in sc

48、ience. The truth or truth in the legal sense is in the sense of procedure and procedure, or that the truth and truth of law are not the reality and truth in reality. In life, the public always wants to see the truth, which is the same as the scientists search for truth. The thinking of the common pe

49、ople is consistent with the thinking of scientists in the pursuit of truth. The truth of reality and the truth of procedure may overlap, that is, the truth of procedure is equal to the truth in reality. However, a large number of legal issues, the truth of the procedure and the reality of the real d

50、istance will exist, or is not consistent. In the specific operation, it is the pursuit of law is absolutely true, but according to the elements of the party in accordance with the procedures and the burden of reconstruction of facts to make decisions.Five, deterministic thinkingSure the law is an im

51、portant function of the judicial function of the dead requirement of judge thinking has the tendency of pursuing certainty. The characteristic of law lies in its universality and certainty. As far as certainty is concerned, as Rousseau said, the law establishes a stable causal relationship between c

52、ertain actions and certain consequences, and keeps certain human behaviors fixed and legalized. In general, the universality of law and the uncertainty is of positive significance to realize the unification of legal justice and social justice, because of the universality of law is the embodiment of

53、justice, certainty of judges strictly limit the willful. In the deterministic thinking of the dead the duty of the judge is in a relatively short period of time just concluded cases,Make the dynamic interest relation adjusted by law be clear, fair and stable in time.Thinking requires the judges judg

54、ment conclusion is always determined either this or that judge, is different from the political thinking of the trade-off characteristics. The nature of the suit requires one to win the lawsuit and the other to lose it, so the judges decision will always go against the other and favour the other. Th

55、e rights and obligations of half and half of the claims are very natural in society, but in court they are purely absurd theories. This is because the law must decide on many issues that are not allowed to compromise. No compromise, but a firm decision. The British jurist Wade had insight: judicial

56、decision is made according to the law, the administrative decision is made according to policy. The court tried to find the correct answer from the rules and principles of the law. The administrator finds out the most favorable and ideal answer in the light of public interest. The judge and the admi

57、nistrators thinking are completely different. The judges method is objective, and his legal concept is complied with; the officials method is experiential and expedient. Professor Ji Weidong also talked about the legal and administrative officer in balance and compromise the difference, he said, mos

58、t of the legal family cannot tolerate non public political trades and unprincipled compromise, flexible discretion of administrative agencies also Circumstances alter cases. alert. This attitude is sometimes hidebound and ridiculed, in todays society in the score change rapidly is indeed very import

59、ant, but, since the bureaucratic management authority has been expanded to omnipresent beneficial to the peoples livelihood level, prevent abuse has become a key national long period of stability; therefore, enough to compete with the dignity of the legal system of administrative discretion. Absolut

60、ely can not be shaken.In many cases, a compromise is possible, but the loss is serious - this is the law of certainty, the law cannot be destroyed on one day in a fair way for all the pink of perfection. The conclusion is that either this or that, no confusion. Although in modern social conditions m

61、ay change some localized, especially in determining the dead legal social change or transformation period of contradiction and social life changes will be more prominent, so in a certain period of time or on some issues, has asked the judge to compromise or active thinking, but will not change the judge thinking characteristics fundamentally.