Supreme law: avoid the rhetoric of judicative instruments.


Supreme law: avoid the rhetoric of judicative instruments.

Original title: Supreme Law: avoid the "uniform" of the reasoning of the referee's documents, which can be accompanied by drawings or appropriate rhetoric.

In order to solve the "monotonous" phenomenon of the referee's documents, the Supreme Court recently issued a guiding opinion that the judge can adjust the body structure of the factual identification and reasoning part of the referee's documents, and the appropriate rhetorical methods can be used to enhance the reasoning effect when necessary.

The reform of judicial document reasoning is regarded as a "hard nut to crack" in the judicial reform project. According to the Supreme Court, www.thepaper.cn has recently issued the "guiding opinions on strengthening and standardizing the interpretation of the interpretation of the referee's documents", which has made a normative requirement for the status quo of the reasoning of the referee's documents.

The chief executive of the Supreme Court said that the interpretation of the judicial documents is an important link and key carrier of judicial justice, which is a "way of making people feel". It is the "pressurizer" of the people's court to force judicial justice from the inside, and to promote the "booster" of the judicial credibility.

Appropriate rhetoric can be used to enhance reasoning effect.

"Opinion" puts forward the standard requirements from the following four aspects: first, the referee's documents should follow the technical standard standard of the series of documents made by the Supreme People's court; the two is that the normative legal documents of referee documents should follow the relevant judicial interpretations of the Supreme People's court; three is the referee's document. It is necessary to use the language that conforms to the norms and standards of the general language and language of the state; four is the standard, accurate, clear, simple, solemn, and refined of the reasoning of the referee's documents.

At the same time, in order to avoid the "monotonous" phenomenon of "monotonous" and "a thousand people" in the past practice, the opinion also provides a series of flexibility provisions to provide guidance for the individualization of interpretation of the interpretation of the referee's documents, including: first, the judge can reasonably adjust the sample of the referee according to the case situation. In the form of the body structure (eleventh) in the factual and rational part, the two is that the judge can use seven kinds of auxiliary arguments, such as guiding cases, reasons and jurisprudence issued by the Supreme People's court to demonstrate the justification of the referee and improve the justifiable and acceptability of the referee's conclusion (thirteenth), and three for the convenience of the judge. It can be selected in the referee's documents, such as the appendix and the attached table, such as the facts of the case or the complexity of the amount, the form of the attached table; the referee's content is more easily expressed in the form of the attached drawings, the way of the appendix, and so on (Fourteenth); and four, the appropriate rhetorical side can be adopted when the law officer is necessary. The law strengthens the effect of reasoning, and proposes to avoid using subjective assumptions, inappropriate rhetorical methods and academic writing style, and not to use expressions that degrade personality dignity, have strong emotional color, and obviously violate common sense and common sense.

The opinion emphasizes that the purpose of the interpretation of the referee's documents is to improve the acceptability of the referee and to realize the organic unity of the legal effect and the social effect by clarifying the forming process and justifiable reasons of the referee's conclusion.

The opinion also puts forward that the referee's documents should clarify the reason, explain the legal principle, explain the reason and pay attention to the literary and rational, and put forward specific requirements from the aspects of reviewing and judging the reasoning, identifying the truth, applying the legal reasoning, and exercising the right of discretion.

The interpretation of law should be strengthened in cases of complex and difficult cases.

The opinion requires that the specific reasons for the complexity of the case, the degree of dispute, the type of trial procedure, the size of the social influence of the case, the type of the document, and the type of documents are simplified, and the specific circumstances of "strengthening the interpretation of the law" and "simplifying the interpretation of the law" are put forward respectively.

In particular, "opinions" first proposed the principle of referee documents to adhere to the principle of simplicity and moderation, that is, "according to the social impact of the case, the trial procedure, the stage of litigation and other different cases of simple and moderate reasoning, a brief case, a brief case, to make every effort to be right"; two is to give a detailed list of the "should be strengthened." The specific circumstances of "legal reasoning" include difficult and complicated cases; a case with large disputes in the litigation; a case of higher social concern and greater impact; a case of acquittal, a sentence of legal punishment below, a sentence of death penalty; and a review of the normative documents on the basis of the administrative act of the accused in administrative proceedings. Cases; cases that decide to change administrative actions; new types or cases that may be a guiding case; cases of protest; cases of retrial or return to retrial; cases of retrial; retrial cases; other cases (eighth) requiring enhanced reasoning; and specific cases of "simplification and explanation"; Including: cases in which civil summary procedures and small claims are applied; cases applicable to civil special procedures, supervision procedures and public notice procedures; cases applicable to criminal tachytailings and summary proceedings; minor criminal cases in which the parties have reached a settlement agreement; cases in which administrative summary procedures are applied. The cases (ninth) which are suitable for the trial of ordinary procedures but not in dispute between the parties of the lawsuit; and other cases (ninth) which are suitable for simplifying the reason, so that the judges have put forward clear operational guidelines.

Editor in responsibility: Zhang Shen


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