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Space of Choice and Judicial Discretion in China: A Perspective of Comparative Legal Culture

Author(s): 
Ji Weidong
Date: 
Wed, 2007-08-01
Abstract: 

This paper shows that the Chinese judicial process has gone beyond the dichotomy of inquisitorial model and adversary model. In China, a judgment must be predicated on the agreement of the party who lost the lawsuit and the comprehension of public opinion, and the judges who lack the concept of res judicata and do not conduct judging in the main had been relativized as the medium of a symbolical interaction among the parties and local community. The legal decisions made there were finally a joint venture of magistrates and the interested parties in the forum of public opinion or bargaining. Therefore, the starting point of legal reform in China is not to negate negotiation or interaction in legal processes, but just to put bargaining amongst the parties in the shadow of the law, especially the procedural rules. In other words, switching the train of thought from the informal process to due process, and from law as an institution to law as a medium, to make Chinese people use law as their weapon for interaction and communication. Here the procedural rules are of great significance.