Keywords: judicial idea, judicial justice, harmonious society
The word "judicature" has a broad meaning in contemporary China, which not only refers to judicial activities, but also includes the behavior of procuratorial power. Modern Chinese Dictionary interprets it as: "Procuratorial organs or judges investigate and hear civil and criminal cases according to law." In the etymology of ancient Greece, the word "concept" means "what you see is like". Plato ruled out the perceptual meaning of this word, used it to refer to "the object of reason", and then regarded the idea as "a spiritual entity that exists independently without concrete things." On this basis, the theory of objective idealism is established. From Aristotle to Aquinas, from Kant to Hegel, there are different philosophical views on ideas, and they attribute ideas to an ideal of an object and a general type of spirit in their thinking. This summary is undoubtedly of methodological significance. Therefore, as the name implies, the judicial idea is people's rational understanding and overall grasp of the nature and law of the dynamic activities of courts or procuratorial organs in handling cases by law, as well as the concept of static judicial system design and systematic thinking on a series of issues such as the function, nature and mode of justice. In the judicial concept system, judicial justice has the highest core value, is the ultimate goal of judicial reform, and is also the cornerstone of building a harmonious socialist society. To build a harmonious socialist society, we must first explore the reform and design of the judicial system under the guidance of judicial ideas, so as to have a clear goal and get twice the result with half the effort. In this paper, the judge's judicial idea is investigated under the background of building a harmonious socialist society, trying to understand the value implication of the judicial idea dialectically and developmentally, and to analyze the necessity and reality of the establishment of the judge's modern judicial idea for building a harmonious socialist society at a deeper level.
First, the necessity investigation: the forerunner of building a fair, just and harmonious society
(A) Reflection on the traditional concept of justice
Modern judicial idea is relative to the traditional judicial idea, that is, relative to the judicial idea formed on the basis of planned economy. In the traditional judicial concept, the guiding position is usually empiricism and utilitarianism, and many of them often appear in the form of ideology, similar to slogans such as "escorting the market economy", "serving the people wholeheartedly" and "being a good judge who is satisfied with the people", supplemented by sports mobilization and promotion. In the process of system construction and reform, there is often insufficient conceptual preparation or even conceptual demonstration, which is characterized by unsystematic, meticulous, tentative and flexible system design, laying the foundation for its randomness. This kind of ideological expression often leads to the extreme of ideas, which easily covers up their inherent rationality and makes the research on ideas based on legitimacy and rationality lose its scientific basis.
Today, with the establishment of a harmonious society and a society ruled by law, with the evolution of China's legal system and the deepening of reform, the ideological demand for providing criticism and defense for reform has finally become increasingly prominent. As a result, concept has gradually become a very fashionable concept term. Due to the lack of legal hermeneutics, departmental law began to show the trend of conceptual research, and legal philosophy became the highest realm and method of legal scholars in various departments. As the main body of judicial activities, the judicial concept that judges should have has gradually become a topic of general concern to the public. Therefore, only by paying attention to the cultivation and renewal of modern judicial ideas can judges ensure and promote the justice of judicial decisions, correctly implement and enforce laws, and realize the reform goal of building a harmonious socialist society and achieving fairness and justice in the whole society.
(2) The value implication of modern judicial ideas conforms to the basic value orientation of fairness and justice in a harmonious society.
Modern judicial idea is the ideal state that people expect the rule of law, and it is the product of the development of social practice and judicial practice to a certain historical stage. Its basic connotation is mainly embodied in judicial neutrality, judicial independence and judicial justice.
Judicial neutrality. To strengthen the construction of the legal system, we must make clear the position and role of the judiciary in the state power structure. Judicature plays the role of intermediary judge in solving disputes between state powers, subjects of various social relations and between state powers and social relations according to law. The concept of judicial neutrality is determined by the nature of judicial power, which is fundamentally a kind of judicial power. Judicial judgment is aimed at the problems of truth and falsehood, right and wrong, qu and zhi. According to specific evidence (facts) and established rules (laws), and through certain procedures. As a kind of neutral jurisdiction, judicial power is reflected in: judicial power remains neutral to legislative power; Judicial power is neutral to administrative power; Judicial power is neutral between the central and local governments; Judicial power is neutral between litigants. Without judicial neutrality, there is no rule of law.
Judicial independence is the main symbol of a modern country ruled by law, an important content of modern constitutionalism, and reveals the general law of modern rule of law, thus becoming a beneficial achievement of human political civilization. The court system with a high degree of judicial independence in modern society requires judges to be independent of all subjects including state organs, social organizations, individuals, other judges and courts in the specific trial process. The declaration that every Hong Kong judge must make before taking office according to the laws of Hong Kong is to "uphold the legal system and uphold justice in the spirit of fearlessness, impartiality, selflessness and non-deception", which typically embodies the meaning of the independence of judges' conscience, that is, judges are not influenced by any improper or irrelevant external factors, and only judge and make decisions according to their own reason and conscience in accordance with laws and legal procedures. The independence of courts and judges is complementary. Modern society pays attention to the independence of the court, and its purpose is to properly separate the court from politics and society through this independence, including the good play of judicial functions. This does not rule out the legal expression mechanism of the parties' opinions determined by the natural nature of disputes, nor does it rule out that interest groups closely related to the parties exercise their right to express their opinions in a normal way. The independence of the court does not exclude criticism from citizens and the news media. After-the-fact, open and legitimate criticism will not infringe on the independence of the court, but a common phenomenon in daily life in modern democratic society.
Judicial justice. Justice is the value goal pursued by judicial organs and the public's expectation of justice. Judicial justice includes substantive justice and procedural justice. Substantive justice, that is, the litigation result conforms to the substantive law. It requires that the judgments of judicial organs conform to the provisions of substantive law, so that legitimate rights and interests can be protected and illegal acts can be investigated. Substantive justice is the direct purpose that people pursue in litigation, and it is also the purpose of establishing judicial institutions in society. Maintaining substantive justice is the embodiment of social value and the unshirkable duty of judicial organs. Procedural justice means that judicial procedures are legal. Specifically, judicial organs exercise their functions and powers, organize litigation and make judgments in accordance with legal procedures; The parties have proper status in litigation, their rights are fully guaranteed, and plea bargaining activities are carried out under reasonable rules. Just procedure is the guarantee of substantive justice. Substantive justice focuses on the legitimacy of the result, while procedural justice focuses on the legitimacy of the judicial process. Justice in the modern sense should reflect the fairness of its substance and procedure. As some western scholars have said, "Justice should not only exist in reality, but also make people feel its existence".
The value implication of the above-mentioned modern judicial ideas is the dominant idea of the whole society to be embodied in a harmonious society, which conforms to the requirements of civilized legal thought of contemporary social development and progress, and is the need of governing the country according to law, building a socialist country with legal system, strengthening the construction of socialist political civilization and building a socialist harmonious society.
Second, the investigation of reality: the modern judicial concept that judges should have to build a harmonious society.
Harmonious society requires modern judicial idea to become the dominant idea of the whole society. As for the judge who is the subject of judicial activities, his professional concept must conform to the basic value orientation of pursuing fairness and justice in the whole society, and abandon all backward judicial value cognition, judicial behavior and judicial ethics that hinder the development of judicial cause, so as to meet the requirements of judicial laws and characteristics.
(A) the inevitable connection between judges' judicial ideas and judicial justice
Judge's judicial idea is the accumulation of judicial practice and the source of "living law". There is no saying that "judges make laws" in China, and judges cannot and will not be recognized for making laws. Judges are required to abide by the law and handle cases in strict accordance with the law. However, in one judgment after another, we really feel the existence of "living law", and we have no reason not to believe that the judge's "inner conviction" is the law. Judicial practice shows that when a judge handles a case, he does not simply put the facts of the case in the right place by law, and everything will be fine, just like a guy in a Chinese medicine shop preparing a prescription of Chinese herbal medicines. In many cases, it is not enough for a judge to master the existing legal provisions. They need to use legal principles and legal spirit to solve legal provisions, which is not enough. They need to use legal principles and legal spirit to solve new problems that the legal provisions do not provide sufficient and clear answers, including plugging legal loopholes and correctly exercising discretion.
With the rapid development of modern society and economic life, new situations and new problems appear constantly. Therefore, judges should have scientific judicial ideas. In judicial practice, judges with scientific judicial ideas play a vital role in correctly applying the law and ensuring judicial justice. First of all, the scientific judicial concept is the basis for judges to correctly exercise their discretion according to law and promote the fairness of judgment. To solve the problem of "judicial injustice", we should not only reform the judicial system, speed up the system construction and improve the legal literacy of judges, but also pay attention to the cultivation and renewal of judges' judicial ideas, so as to promote judicial justice and improve the social credibility of the judiciary. Secondly, modern judicial ideas guide judges to correctly understand the law in the process of applying the law and make it conform to the legislative intention. Laws are always made up of legal provisions. In the stage of law application, the understanding of legal provisions promotes the combination of law and case facts, but the combination of law and facts will not be active and must be realized through a subjective intermediary such as a judge. In the application of law, judges will infiltrate their own conceptual models and value judgments. Therefore, the judge's judicial concept and legal literacy are the basis of correctly applying the law and the premise of ensuring judicial justice.
(2) Establishing the concept of safeguarding judicial justice is the cornerstone of building a harmonious society.
Establishing the modern judicial concept of safeguarding judicial justice requires judges to handle cases only according to law, social justice concept, personal conscience and values. The law embodies the universal concept of social justice. Personal conscience and values are judges' understanding and interpretation of the concept of social justice according to their personal ideas, and they are also their value choices of morality, politics, common sense and philosophy. In building a harmonious socialist society, judges should establish the following judicial ideas with judicial justice as the core:
1. Judges must have high professional ethics. At present, the primary quality requirement for judges is the improvement of moral quality, followed by technical level. Justice is the requirement of judges' professional ethics and the most essential requirement of judges' judicial ideas. Justice can carefully protect one's conscience, thus becoming a real judge. Huang Songyou, vice president of the Supreme Court, said: "Judgments are laws filtered by judges' morality. Judges must abide by judicial justice in the process of hearing cases and cannot deviate from the theme of justice. "
2. Judges should pursue the efficiency of maintaining justice. "belated justice is not equal to justice." The value of justice and efficiency can be described as the wings of litigation activities, and the ideal state of procedural law running in society is the best balance between justice and efficiency. Without efficiency, justice will be overhead and become a rootless tree. In modern society, efficiency has become another important measure to measure whether a country's litigation activities are scientific and civilized, and paying attention to efficiency is an important feature of modern justice. Prolonged litigation not only consumes judicial resources, but also makes the reasonable expectation of the parties far away, social justice cannot be fundamentally realized, the authority of the law will lose respect, and the credibility of the law will also lose.
3, the judge must be in the middle of the trial and judgment. Modern judicial activities require judges to maintain a state of separation from political parties and social groups and maintain a detached attitude. It can be said that there can be no justice without the neutrality of judges. The essential feature of judicial activities is intermediate trial. The judge is in the middle of the trial and judgment, so he is required not to be subjective and biased, draw a frame and be preconceived. When dealing with substantive cases, the case shall be finalized according to the facts of the case proved by the evidence; The general judge should not collect evidence by himself, but also cross-examine and identify it by himself. Appraisal shall be made according to the evidence and cross-examination of the parties, the facts of the case shall be ascertained and the judgment shall be made according to law.
4. Judges should strengthen the concept of procedure. Procedural justice is a rigid restriction on the judiciary, which ensures that the judiciary can exercise public power within a reasonable range. Procedure is the umbrella of civil rights and the guarantee of institutional justice. In recent years, with the promulgation of litigation laws and regulations, the concept of procedural justice has gradually become a kind of knowledge among judges. However, laws and regulations can only make specific provisions in the macro aspect of judicial procedure, but often can't give a plan in the micro aspect of judicial procedure, which needs judges to constantly seek breakthroughs in the details of judicial procedure in trial practice.
5, the judge must insist on the facts of the case as the basis of the final judgment. Article 46 of the Criminal Procedure Law stipulates: "All cases should pay attention to evidence and investigation, and confessions should not be trusted." Article 7 of the Civil Procedure Law stipulates: "In trying civil cases, the people's courts must take facts as the basis and the law as the criterion." Facts are the reflection of objective existence, and litigation activities should take "objective truth" as the highest goal. However, the facts of the case are proved by evidence, and the facts identified by the people's court in accordance with legal procedures are essentially a legal truth. In the case of fair and open procedures, the people's court can only take the facts of the case confirmed by the evidence examined and confirmed according to law as the basis for adjudication. In criminal proceedings, evidence must exclude reasonable doubt, which is obviously exclusive, and any accusation of crime without sufficient evidence should be regarded as untenable. Correctly handle the relationship between facts and evidence, overcome the tendency of separation between facts and evidence, and prevent the arbitrariness of judgment. In civil litigation, when the evidence is not really sufficient and it cannot be proved that the facts of the case completely exclude other possibilities, the validity of the evidence should be confirmed according to the standard of probable proof. If it is difficult to identify the disputed facts because the probative force of the evidence cannot be judged, the people's court shall make a judgment in accordance with the rules on the allocation of burden of proof.
6. Judges should exercise their discretion correctly. Lord Denning, a famous British judge, said that "the most important thing is not to realize the law, but to realize justice". Discretion refers to the power to make judgments within the scope of legal provisions, which should be just, fair, correct, reasonable and reasonable. The judge's discretion is one of the ways to embody his judicial function. When trying a case, a judge should not only strictly follow the specific laws and judicial interpretations, but also consider political, economic, ethical and customary factors, and try to balance the relationship between emotion, reason and law as much as possible, so as to make a practical and fair judgment that conforms to the provisions of laws and judicial interpretations. Discretion cannot obviously violate the existing laws, and judges are not allowed to act at will. The fairness of any discretion must be tested by the purpose of legal and judicial interpretation and the social effect of the judgment.
7, the judge must establish the overall situation concept. Some people say that the job of a judge is to interpret the law according to the principles of the law and realize the value of the law through trial activities. Judges are faithful servants of the law. "Justice for the people" put forward by the Supreme Court violates the spirit of "the supremacy of law". As we all know, it is extremely unrealistic to talk about the ideal of "the supremacy of law" in an environment where the authority of a national judicial organ has not yet been established. To establish judicial authority, we must make our work obey and serve the overall situation of the party and the country. We should adhere to the principle of Party leadership and supervision by the National People's Congress, and report major cases to the Party Committee and the National People's Congress in time to win their understanding and support for the trial work. As courts and judges, we should attach great importance to cases involving the overall situation, such as those involving reform, which may affect social stability, and those that have aroused widespread concern among the people, and handle them properly, not only to maintain the seriousness and stability of the law, but also to reflect the flexibility and timeliness of policies.