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Judicial adjudication is not only an activity to find out the truth, but also is an activity of establishing social norms and setting up social values. This requires the judiciary to find out the truth of the choice of the method of proof, must be based on the legitimacy of the decision to consider and have a more long-term vision.
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Key words of the thesis, the presumption of liability
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The neglect of the rules of burden of proof
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The key problem of the Peng Yu case is there is no collision occurred, or said Xu granny whether the fall is due and Peng Yu collision caused by. Judging from the contents of the first instance and the information disclosed by the media, the two sides are lack of persuasive, direct and original evidence in the trial. Therefore, a very representative opinion, since evidence on both sides say don't know the whole story, namely law of evidence about evidence prove force is insufficient, that why sentenced Xu granny won?
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Really did hit hit the facts of the dispute, the plaintiff is evidence, and is a direct evidence -- the record of inquiry photos, but not the original evidence that weak point, but it shows when the two sides is admitted into the. And at that time the alarm query transcripts of police officers who later provided to the court testimony, in fact, or a primitive evidence, that is, when interviewed witnessed the both sides of the. And Peng Yu in addition to verbal retort, and no any substantial evidence to deny the collision (provided by a witness did not see Xu Granny fell in the process). On both sides are not absolutely sufficient evidence to negate each other, as long as the evidence cognizance facts than on the basis of the other evidence identified in phase is more likely to found, then the party will due to the fact that his claim is regarded as true and win. This is that the standard of proof of civil litigation, to determine whether the evidence provided by a party is significantly greater than the other party to provide evidence of evidence, and the evidence of greater evidence to be confirmed. Therefore, even if the police lost the incident when the two sides of the original inquiry transcripts, the first instance verdict as long as the applicable rules of proof, the same can solve the problem."
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Of course, such a solution, it seems that the truth of the matter is not found. It is actually a concept, the truth even if only a, but not every case can reveal the truth, because people are not omniscient and omnipotent God. The rational and cognitive ability of human being is restricted by the objective environment, and the statement of "all cases can solve the case" is not consistent with the theory of dialectical materialism. Proof liability rule is "taken by mankind in the continuous improvement of cognitive means and tools to improve quality still can not find the facts of the case under a overcome the limited rationality of institutional safeguards, this also means that people from the method and process have done their best efforts remain unsure of the facts of the case, and forced to take may not have the necessary rational compromise". The author believes that the "Peng Yu case" at the time of the subjective and objective conditions, it is in the evidence law on the "objective reality" can not achieve the situation. At this time, the judge should go to the pursuit of legal truth, that is, no matter what the objective, in the law court must give the parties a statement. Because the court is the end of the dispute, the judge can not because of hard to find the truth and give up their duties. The rule of distribution of burden of proof is just such a method to realize the real law through the technical means of law. If the burden of proof in the judgment of the rules in the detailed interpretation of the full, we believe that the public can understand. Very sorry, at that time instance court (judge) without the idea of judgment of the focus on the distribution rules of burden of proof of the exposition and argumentation, but in the original evidence and direct evidence for lack of trying to through the method of proving the fact reasoning, the chain of evidence formed by several indirect evidence to push to export the truth, also is the sentence book "according to the daily life experience analysis" and "according to the analysis of the social reason" to identify the facts of the case. The pursuit of truth the criticism, the court of course should not easily in fact unable to ascertain the grounds and easily applicable to distribution of burden of proof rules to decide the outcome. When the authenticity of the unknown, using the method of estimating cutting case is also a shortcut, but the judge "Peng Yu case" kindly to do bad things.
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Two, the presumption of facts of the misuse of rules
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First instance verdict has attracted the most public resentment of a paragraph is "if the defendant is courageous to do good things, more in line with the actual practices should be knocked down to the plaintiff's men caught, not just the kind support; if the defendant is to do a good deed, according to the social reason, to arrive in the plaintiff's family, which can is implicit in the fact that through and let the plaintiff's family. The plaintiff was rushed to the hospital, then left on their own, but the defendant fails to make such choice, the behavior obviously contrary to reason." U.S. Supreme Court justice Holmes said that the life of the law is experience, not logic". And in this case, a lot of people laugh, we can not see the experience, but also did not see the logic.
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And the key problem is the social reason, the presiding judge is according to the laws of the social reason this experience, in the case of presumption of fact. Whether the rule of thumb is correct or not is the key to the presumption of fact. How does the rule of thumb come from? It is the general rule of law which is abstracted from the social life experience, so it must be a summary of the experience that the general public in the long-term social life generally agree with or generally follow. But the judge in the case of "social reason" this experience apparently due to the heat, is generally not, Overgeneralization. If the judge summed up the social reason rule of thumb was established, then it means that China's current social life has no good and warm-hearted the, all with an armchair, indifference, no sympathy for the people.
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The case the trial judge made in presumption of fact is one of the biggest mistake is that he forgot the presumption must satisfy a precondition, which is we have a lot of textbooks in the presumption of fact to explain this knowledge often ignore a problem, that is in fact presumption rule of thumb must have the necessary legitimacy, it is necessary to the maintenance of public order and good morals and the mainstream values advocate has a positive role in promoting the constructive logic must conform to the concept of fairness and justice, we must comply with the current social policy and social value orientation. Conversely, if the social life in those backward and negative, the unspoken rules of the decadent regarded as a rule of thumb, openly wrote judgments, contrary to such a request for legitimacy.
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Law has a guiding role in the behavior of people, the law to the behavior of people before the implementation of the pre sentence, what things can do, what things can not be done. The legislation itself is abstract, the judicial decision is transformed the abstract law for the public can see the living specific legislation, the spirit of people from the decision of a case solution reading to get guidance to decide how to act. Therefore, "Peng Yu case judgment a, can be said to be the helpfulness of the Chinese nation, courageous and the traditional virtues advocated by the disastrous effects, for the public to interpret information is a gloomy Society guidelines of the society people are fewer, so do not do a good thing for the wonderful. "The difficult cases, or the birth of a great judge or create a bad precedent", a large number of news reports have demonstrated how incisive the adage. So, you will have a reflection on these years "moral decline" problem jishuashua to spearhead the case. So if, at the time of the trial judge be able to consider this point, then the best choice is to give up the search for the truth. In accordance with the present disclosure of the situation, when the judges still really find the truth, but this dedication to pursue the social costs are too high.
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Three, the legitimacy of the case judgment considerations
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Single case, Peng Yu case verdict in law absolutely illegal, perhaps Peng Yu year at the time of the incident is indeed to think so. But the verdict is that the reason is not appropriate. As pointed out, this verdict if the remove the social reason that part of the analysis and the argumentation reasoning actually is completely acceptable, but on the reason analysis produces the judge had not intended to consequences, purely to gild the lily. The reasonable analysis is a "wicked" analysis, even legitimate nor reasonable, because the objective effect in encouraging people to MYOB. This shows that judges should not only deciding cases according to law -- in accordance with the law the wrong, but justice not like natural sciences as pure one plus one equal to two technical any value judgment, but a social concept of strong, with humanities, need to seek acceptability of activity in the human emotion, that decision must have legitimacy. If a judgment is widely divergent from the general public, even if the judgment is legal, it does not have the acceptability, that is, the lack of social legitimacy. Judge ruled in addition to outside the law must also be considered outside the law there is no any other social values need to be considered, there is no other public interests need to be protected, in accordance with this sentence down will not bring any negative impact on. That is, we often say that the legal effects and social effects to be unified. If consideration is not comprehensive, it is very possible will be outside the law of other interests in danger, leading to public the does not endorse, do not accept, the dispute has not been resolved but also create new contradictions and live up to people's expectations will eventually lead to its own judicial legitimacy is weakened, internecine.
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Of course, it was also noted that, if when the judge according to the distribution of burden of proof rules of sentencing, in case that the plaintiff insufficient evidence and judgment against the plaintiff, so now it seems equal to indulge the Peng Yu, the case is not do wrong? The author would like to emphasize, Peng Yu and Xu granny who is right and who is wrong in this case is important, or public order and good custom in our whole society helping others important? The answer is self-evident. In other words, in order to balance justice in a case and has more value of social justice, in order to promote the development of society as a whole positive values, even if wrong put Peng is also worthy of, because "different from the pure science, the purpose of the law is not found out the truth, does not lie in the find the truth, not simply because found out the truth." At this time the legal reality is more worthy of choice and acceptance than the objective reality. Because such a moral problem, the problem of value by means of judicial technology to be solved is a tangible way of resolving disputes, it can be immediately converted to guide the behavior of civil society, the educational value of society people to than the broad political propaganda more actual effect. The benefits and advantages of judicial means compared with political means, through the decision to in real really in to public policy formation role in promoting. In the case of France's home in a high degree of emphasis on procedural justice inside the court, such value choices abound, typical as Miranda warned the birth of the sentence.
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Four, repeat the Xu Yunhe case
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The plaintiff sued the defendant Xu Yunhe Wanglaotai lose money, because it was hit by Xu Yunhe's car. But judging from the book and comprehensive related media reports, in fact, the court also believes that the plaintiff's evidence does not prove that the two sides had a collision. In other words, "Peng Yu case" although both sides each sticks to his argument, but granny Xu as the plaintiff have some evidence, although the effect of record photos and officer testimony in doubt, and Granny Wang simply could not get any direct evidence to prove that Xu Yunhe car hit. Although Xu Yunhe also take out evidence did not butt, but according to the civil litigation proof liability rules, "claims should the rights the facts bear the burden of proof". Therefore, the plaintiff's request there is no evidence to support, that the plaintiff did not complete the burden of proof, the certificate does not hold is not required by the defendant to provide evidence, the plaintiff shall lose undoubtedly. So, if in accordance with the rule of burden of proof, Xu Yunhe case is also very easy to judge things, but out of court.
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Judgment on the said, although it is not clear, but this is a traffic accident, traffic accident does not require a collision does not require. That's right. "Xu Yunhe" case and "Peng Yu case of a difference lies in the fact that the Peng Yu case is two natural collision, belongs to the general personal injury tort compensation, liability for fault; but the Xu case is the collision between cars and people, traffic accident, in accordance with the" Tao "applicable to strict liability, no fault to compensate (within 10%). But it must be pointed out is that the Xu case here mainly is not the fault of the problem, but no causal relationship problems, or whether there is a causal relationship between Wanglaotai falls and Xu Yunhe driving behavior. Court after reasoning finds that even if the two sides did not collide, the fall is Xu car Wanglaotai intimidated by, so there's still the causal relationship, but this reasoning of Hongqiao court made and "Peng Yu case" presiding judge wrong, misuse of rule of thumb.
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The key to the case reasoning is Wanglaotai fall in the end is not Xu Yunhe driving to her frightened, and the court summarized the rule of thumb, said: "in a short distance as the behavior of the plaintiff suddenly found the vehicle to drive, will panic disorder, it fell to the ground will certainly by oncoming vehicle impact". The question is, what is called the "inevitable" will panic, "why must" be affected? First of all, pedestrians turn over the fence to see if the car is close to their own will panic, its inevitability is worth discussing. Secondly, in the middle of the road crossing the barrier itself is a kind of easy to slip down the behavior, reason Wanglaotai fall whether must be by Xu car frighten not without doubt, that decision "inevitable" "certainly" the rule of thumb significantly generalized is not comprehensive, reasoning is not inevitable. So the public immediately said, but also a Peng Yu case".
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Five, conclusion
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Judicial decision is not only an activity to find out the truth, but also is an activity to establish social norms and establish the social value. This requires our judiciary, in the choice of the proof of the truth of the method must have a more long-term considerations. From the "Peng Yu case" to "Xu Yunhe case" can be seen, the awkward fact finding and applicable laws of mechanical and reasoning of the judgment of lack of wisdom, our courts and judges repeatedly make similar mistakes. This shows that in the current complex social transformation of our country in the environment, the judge's judicial ability is yet to be further sublimation.