On the one hand, it shows the deterministic advantages of legal formalism and the shortcomings of lack of adaptability, and on the other hand, it shows the strong ability of substantialist rule of law to digest legal issues in the new era, as well as people's hidden concerns about the subjective arbitrariness attached to judicial value considerations.
1. The necessity of considering the value of judicial adjudication
The "original intention" of judicial reform in the new era lies in adhering to the principle of "justice for the people and fair justice", which puts forward new requirements for courts and judges, among which the highest requirement is objective and fair judicial decisions.
To this end, judges should comprehensively use methods such as legal interpretation and value consideration in hearing cases, and at the same time, in addition to meeting the formal requirements of strict ruleism, they should also highlight the important position of judicial value consideration.
It can be considered that the interpretation of legal texts is a basic method of adjudication, and the advanced stage of determining the division and stopping disputes should increase the intensity of judicial value consideration, and it is precisely from the sense that justice is the last barrier for the protection of legal interests, judicial value consideration is indispensable, and its necessity is manifested in the following aspects:
The coexistence of the stability and rigidity of the law with the conservative and lagging characteristics of the law inevitably requires the consideration of judicial values
The stability and rigidity of the law have a positive effect on the adjustment of the behavior and relationship of social subjects, but with the unforeseeable development of society, legal disputes also show signs of escaping legal regulation from time to time, and the relative conservatism and lag of the law in this case have brought a lot of troubles to judicial trials.
In the context of the legal interpretation mechanism has not yet been normalized, the judicial organs should not only respect the authority of legal texts, but also smooth out the friction caused by the asynchronous legal rules and reality, which requires judges to master various legal methods, especially the methods of judicial value measurement.
Because judicial value measurement can help judges better overcome the shortcomings of legal formalism and clinging to texts, give play to the corrective role of substantive justice, balance the conflict between rights and values involved in the case, and make judicial rulings that optimize the protection of rights.
Differences in the interpretation of legal terms inevitably require judicial value considerations
Therefore, when the facts of a case cannot correspond to the legal rules, or when there are multiple different legal provisions on a legal fact, or even when there are differences in understanding the same legal fact and the same legal provision, judges can only choose judicial value considerations as the guidance of the adjudication, weigh the interests and properly allocate rights, obligations, and responsibilities, and make a judgment.
The practice of dealing with the trial of complex cases also inevitably requires value considerations
It is the duty of the courts to make fair judgments in accordance with the law and procedures.
However, in judicial practice, the complexity of the trial content of the case is beyond imagination.
For the trial of simple cases, judges can still use the syllogism "trial style", and the conclusion can be derived based on the major premise and the minor premise; However, in complex cases, there are often disagreements in the determination of legal facts, and disputes may also arise over the choice of legal provisions, and the adjudication conclusions that are barely deduced from this lack judicial credibility.
Therefore, to achieve judicial fairness, we should seek a breakthrough in formalistic adjudication methods under the premise that the necessary conditions (i.e., facts and law) have been fixed, and judicial value considerations can take on this important task, emphasizing that judges should not stick to textualism, but should also refer to the background of the case and the spirit implied in the legal provisions, summarize the consistency of legal values, principles and rules, and make legal and reasonable judgments, so as to protect the legitimate rights and interests of the parties to the greatest extent.
2. The availability of judicial trial value considerations
Judicial value consideration is essentially a judge's choice of two or more legal values that give rise to conflict, and in this process, the judge's value judgment has an obvious subjective tendency, so it is inevitable that some people will question whether judicial value consideration is available. To this end, it is necessary to clarify the availability of judicial value considerations, as follows:
Judges make judicial value considerations accessible
The subject of judicial value consideration is the judge, an intellectual group who is proficient in mastering the rules of law and applying the rules of law to resolve disputes, and has the qualified professional identity and legal literacy to adjust the conflict of legal values.
Judges as a whole have the ability to perceive the subtle differences between the legal values that have occurred, weigh and rank the legal values in different fields, and make justifiable judgments in response to the community's concerns about the case.
In addition, based on concerns about human shortcomings, the legislature and the judiciary themselves have also established strict prevention mechanisms to prevent arbitrary value judgments by judges in the design of the system: ( There are strict conditions and procedural requirements for the selection and appointment of judges; • The welfare and security of judges have been continuously improved, their social status has been continuously improved, the professional training of judges has been constantly grasped, and the professional quality of judges has also been steadily improved; The court's collegial panel system, presiding judges' conference system, adjudication committee system, etc., limit the subjective impulses of individual judges; The court has established a supervision system for appeals, applications for retrial, appeals, etc., and has also set up systems for legislative supervision, administrative supervision, procuratorial supervision, and social supervision externally.
Therefore, from the perspective of theory and system design, it is appropriate for the group of judges to undertake the work of judicial value consideration, and the group of judges also has the ability and conditions to ensure the availability of judicial value consideration.
The reference standard for judicial value considerations makes it accessible
Judicial value consideration is the process in which judges make value judgments with reference to certain standards when adjudicating, and it should be emphasized that the standards that judges refer to in value consideration are legal value standards rather than social moral standards.
In other words, the judge's value consideration is by no means subjective and arbitrary reasoning, but still within the legal framework (including formal and informal sources) and is bound by it.
In the process of value consideration, before making a decision on conflicting legal values, judges often reflect the conflicting legal values involved in the case into the legal system for detailed reference, and try to use different legal value standards to guide the law to derive the judgment result, and then weigh several value judgments and determine the judgment.
This logical order of argumentation of judicial value consideration can not only maintain the relatively independent relationship between legal value and legal rules, but also clarify the priority of legal value to guide legal rules. It is not only conducive to the reasoning and argumentation of judicial value consideration to obtain a definite judgment conclusion, but also to avoid the legal value judgment from falling into the logical trap of circular questioning, so as to ensure the availability of judicial value consideration to the greatest extent.
The legal process ensures the availability of judicial value considerations
Judicial value consideration, in the final analysis, is a kind of judicial activity, which must follow the statutory trial reasoning procedures, which is also the basic requirement to ensure the legitimacy of judicial value consideration.
However, after all, the consideration of judicial value has a clear subjective tendency, and the value of law itself contains many uncertain factors, if combined with the subjective judgment of the judge who controls the consideration of judicial value, this does make people feel at ease about the fairness of judicial value consideration.
The good news is that a series of legal procedures have been designed within the national rule of law system to prevent arbitrary considerations of judicial values.
Judges should also strictly abide by legal procedures designed to ensure "judicial openness and fairness" in their adjudication activities that weigh conflicting legal values.
In the judicial process, from the acceptance of the case to the public trial to the judgment, the value consideration and professional activities of judges should be carried out within the constraints of legal procedures.
In addition, legal procedure is a set of statutory rules that are objective and universal, and must be followed by both judges and parties.
Therefore, the judge's value trade-off judgment based on legal procedures can withstand the scrutiny of the law and has convincing judicial credibility.
In this sense, we believe that when a judge decides that a complex case must be subject to value considerations, it is the only result acceptable to all parties within the framework of the existing legal system to weigh the conflicting legal values in strict accordance with the legal procedure.
It is precisely by relying on the independent and impartial value of the legal process that the judgment made by the judge applying the value consideration can be trusted and respected by all parties. It is precisely with the control of legal procedures that it is possible to control the arbitrariness of judges in the process of value consideration, so as to more objectively weigh the benefits of various methods and trial benefits, and maximize the realization of procedural justice and substantive justice in individual cases.
One end one.