Text: Ma Ge
Justice and efficiency are the eternal value pursuit of justice. With the in-depth promotion of the strategy of governing the country by law and the rapid development of social economy, the resolution of social contradictions and disputes increasingly depends on justice, and higher requirements are constantly put forward for justice and efficiency.
President Zhou Qiang of the Supreme People’s court once said, “the process of judicial settlement of disputes is essentially the process of finding facts and laws.”
However, there are no facts that can be found out immediately, and there is no applicable law. Before questioning the efficiency and effect of “search”, let’s first look at two groups of “cruel” realistic data.
Group I: courts across the country have been operating at a high load for many years. In 2019 and 2020, the number of litigation cases accepted exceeded 30million, and the number of cases handled by judges per capita reached 225, of which civil cases accounted for 55%.
Group II: as of December 2021, China has 291 effective laws, more than 600 administrative and supervisory regulations, and more than 12000 local regulations. At the same time, there are many judicial interpretations, as well as “two Supreme People’s court” judicial documents and guiding cases.
It is an indisputable fact that there are many cases and few people. How to clarify the truth from the complexity, how to quickly find the applicable law in the vast sea of law, how to scientifically allocate judicial resources within the existing mechanism, “so that the people can feel fairness and justice in every judicial case”, is an urgent problem to be solved by the people’s courts at present.
In this regard, courts at all levels have launched many key measures to promote the efficiency and quality of trial work in recent years, and many legal experts and scholars have devoted themselves to providing advice and suggestions. Zhuwei, director of Shanghai Asia Pacific Law Application Rules Research Center, is one of them.
Zhu Wei, director of Shanghai Asia Pacific Law Application Rules Research Center, adjunct professor of Shanghai Normal University, and former senior judge of Shanghai court. Since 1985, he has handled more than 2000 cases of various types, and completed such topics as case elements, structures, proofs, deconstruction paths, and implementation tools. Since 2010, he has given special reports and lectures on “rules of law application” for the National Academy of judges, Shanghai Academy of judges, Shanghai public prosecutor’s college, Shanghai law college, Shanghai Public Security College, Fudan University, East China University of political science and law, Shanghai Normal University, Xiangyang intermediate people’s court, etc.
In 1997, the article “understanding and rationality” which introduced Zhu Wei’s trial work won the first prize of “judge in my mind” theme essay selected by Shanghai Higher People’s court, enterprise and law magazine and other news media organizations.
In 2010, he published a monograph on trial methodology. Mr. liguoguang, former vice president of the Supreme People’s court, said in an orderly manner: “it is a reference book worthy of every legal worker to carefully study and acquire practical knowledge.”
In August, 2014, the monograph civil and commercial cases – Elements of cause of action was published, which is the first filing standard of civil and commercial cases in China.
In october2018, he published the monograph rules for the application of law.
Professor Zhu Wei has served the Shanghai court system for many years, and has handled more than 2000 cases of various types of cases. He has long been committed to the study of “rules of law application”. Over the past 20 years, his work, life, thinking and writing have also been carried out around it. From the trial methodology in 2010 to the case study in 2021, he has always aimed at clarifying some “obscurity and chaos” in judicial practice, and exploring the realization of judicial justice On the road of efficiency, Dr. hutianye, director of the civil and Commercial Department of the National Academy of judges, commented on the content of his lecture: “shocked! Subverted the traditional way of handling cases.”
“Scholars cherish calligraphy and are willing to leave words in the world”, which is the feelings of a senior legal worker well-known in the academic circles. This journal specially highlights the key points for the readers.
Oriental Culture: what is the core of your “case study” to solve?
Zhu Wei: Law and medicine are the basic components of anthropology. The case study in law is like the human body study in medicine. The content of law research is judicature, not law. The object of justice is the case. If the case is unclear, the blind will feel the elephant. If the tools are missing, they will become unarmed soldiers. If the signs are blurred, they will lose their direction.
The core of “case study” is to first establish the “standards” of cases and find the “laws” of cases. Without the establishment of standards, the application of law has no definite purpose. The credibility of justice is based on the universality of the same judgment of similar cases. The universality of the same judgment of similar cases stems from the unity of the trial path. The unity of the trial path is the standardization of the facts on file, and the standardization of the facts on file is due to the dominance of logical tools.
Oriental Culture
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However, in judicial practice, there are long-standing problems such as inconsistent application of laws and inconsistent judgment standards among courts, which have questioned the judicial credibility. Why are “different judgments in similar cases” still common under the unified law?
Zhu Wei: the essence of “different judgments on similar cases” is that there are no facts and case standards. The undertaker relies on instinctive perception to understand the facts and cases, and handles the cases based on experience rather than through the law, which has raised the law to the standard. Such cases are like large-scale food stalls. Chefs lack operating standards and cook based on experience. The utensils used are simple and crude. The taste quality of the dishes is unstable from good to bad, showing “different judgments for similar cases”.
The society is entering an intelligent era, and the cases still do not show the law, which is not a normal phenomenon. In reality, the contradictions of filing a case, trying a case, appealing for a petition and maintaining stability, except for a few affected by the personality and ability of the parties, are more due to the disorder of objective standards. In medicine, the diagnosis basis of hypertension and other diseases is unified nationwide, and the detection tools are equipped with the same standard. Otherwise, medical accidents will emerge in endlessly, and the doctor-patient relationship will be unimaginable. Similarly, there is no unified standard for the element structure, deconstruction path and realization tools of the case, so the scientificity of the proof is impossible, and the accuracy of the application of law is lack of objectivity, which will inevitably affect the quality and efficiency of handling cases, the practice and effect of the legal system, the purpose and benefit of legal education, and thus the credibility of law enforcement and justice.
Special report on “rules of law application”
Oriental Culture
: how can we find “objective standards” to prevent the undertaker from instinctively handling cases?
Zhu Wei: we should start from handling cases scientifically or in a standardized way. For example, KFC fast food starts from formulating standards for raw materials, to setting standards for processes, and then to unifying standards for tools. Raw materials for handling cases, i.e. case elements; The process of handling cases, that is, the principle of proof and the path of handling cases; The case handling tools, i.e. the carrier of such disciplinary knowledge as linguistics, standard logic, target sociology, subject psychology, ontology jurisprudence and methodology philosophy, are the same for judges, lawyers, prosecutors and police. The civil and commercial cases: elements of cause of action, which I compiled, is the first standard for filing civil and commercial cases in China, and is also the benchmark and factual standard for the trial court to handle cases. The trial methodology: an introduction to trial from the perspective of philosophy fills the blank of trial “technology” in China. The case handling path is to fix the facts, determine the rights, determine the nature, define the form, apply the law, and prove the object, responsibility, effectiveness and characteristics of the principle, which constitute the case handling process.
Oriental Culture
: but some people think that each case is different, just like “one cannot step into the same river twice”. Do you agree?
Zhu Wei: even Heraclitus realized that there is logic in the development and change of things. Parmenides said frankly that the path of truth is based on existence, not non existence. The importance lies in the essence, not the phenomenon. The case cannot be more complex than the human body.
The scientific case model is very simple, as simple as this one. Once you master it, you can handle the case like a cook solving a cow. The classification of administrative, criminal, civil and commercial is only different in nature; The classification of the public, procuratorial, judicial and administrative departments is only the difference of different functions; The classification of aviation, maritime, insurance, finance, marriage, inheritance, contract, tort, etc. is only the difference between the personality of the subject and the object. The subject is either a natural person or a legal person; The object is either the right of man or the right of thing. On this basis, it extends to behavior and intellectual achievements. The jury system and case law system in foreign countries are not scientific theories for handling cases. They are only flexible methods before the law of cases is discovered. They belong to the wisdom method of philosophy. The “law” of case law mainly refers to the method of handling cases.
Oriental Culture
: in response to the “different judgments on similar cases”, officials have made frequent actions in recent years. In early 2021, the central political and Legal Affairs Commission included “improving the application mechanism of unified laws” in the task account of the top ten key reform initiatives in the field of political and legal affairs in 2021. The measures for the implementation of the unified application of laws of the Supreme People’s court came into effect early last month. This can also be understood as the official “standard” of cases, What do you think your “case study” complements it?
Zhu Wei: the measures for the implementation of the Supreme People’s court’s unified application of law, which focuses on the requirements of formal process, and the case study is the standard for providing content objects. The two coupling complement each other. Only formal requirements, no content standards, or only content standards, no formal requirements, can not achieve the quality of trial efficiency.
The unified form requirement of the Supreme Court can be regarded as an extension of the law promulgated by the people’s Congress. It is an indisputable fact that it is difficult to achieve the effect of the same judgment in similar cases only by legal form. This is also like the national medical management department requiring that the treatment process of grass-roots hospitals be unified. If all doctors graduated from pharmaceutical universities, they only master the knowledge of Pharmacopoeia, but do not master the knowledge of human body, the diagnosis of the disease can only be based on the blind and the elephant, and the same treatment of similar diseases can not be achieved, or even save the dying and heal the wounded. Case science is like human body science, which helps law students who only master the knowledge of code but not the knowledge of cases to solve the problem of the object of law application. The expressway is a unified form. If the ox cart, carriage, tractor and even human beings pass together, it will be difficult to realize the architectural value; The high-speed railway serves for bullet trains. If it is still a green car, it will lose its significance. “Case study” is the specific content that connects the Supreme Court’s unified and standardized concept of form. It is a vehicle that meets the driving standards of expressways and high-speed railways. Combined with computer technology, the facts, rights, nature, forms and other contents involved in “case study” are put into application, which can embark on the road of intelligent trial assistance sequence, and then be improved through iteration in practice, The form of “smart court” is seamlessly linked with the content of “scientific trial”, so as to effectively ensure judicial justice, fairness and efficiency, thus reducing the work intensity of judges, improving people’s sense of fair access and increasing social harmony.
In addition, “case study” is a breakthrough in the basic field of social science theory. Judicature is not a phrase, but two coordinate words, similar to medicine. Law is like pharmacy, and code is like Pharmacopoeia. Division is also like medical science, including sociology, case study, deconstruction, involved certificates, medical like tests, involved case handling tools, and similar medical devices.
Oriental Culture
Over the years, there have been numerous theoretical achievements in the legal circle, but the judicial practice circle seems to be paying more and more attention to “pragmatism”, focusing on solving problems, and deliberately opening up the necessary distance from the theoretical discussion in the academic circle to avoid causing unnecessary disputes. Why is this? How do you understand the relationship between theory and practice?
Zhu Wei: this kind of conscious isolation attitude does exist in the practice circle, but it also reflects that the domestic academic circles really need to be vigilant and reflect on their own research attitude and research level. For example, the attitude of the judge group towards the case argumentation opinions issued by legal experts has changed from the original instructions to the later abandonment, which is part of the evidence. However, if the law circle is simply divided into theory and practice, the teachers of the law school are classified as the theoretical circle, and the case handlers of the public security, procuratorial and judicial departments are classified as the practical circle, there are many disadvantages. If the legal theory can not guide practice, what is the value of this theory? What kind of trial will it be if judicial practice leaves the guidance of theory?
The drawback of the binary classification of theory and practice is that it blurs the important fact, which is also the category construction to realize the basic concept of fairness and justice, and ignores the role and value of the logical definition of cases. Not only that, this classification also makes some people praise the so-called higher theory, forget the original intention of integrating practice, and lead to the artificial separation of theory and practice.
In judicial adjudication, if there is no significant interest impact, judges want to be fair and impartial subjectively. The key is that there is no path dependence on scientific case handling objectively. The so-called foundation is not strong, and the earth is shaking. The knowledge of rule of law, first of all, is to master the thinking tools of rule of law, and then to master the laws of the objects of rule of law. There are standards for facts, rights, forms and nature. Such standards are called law and “handling cases according to law”.