論訴訟制度視野下法官審判話語規則的構建與改進

Abstract

With the development of judicial reform in China, the establishment of fair, efficient and trustworthy modern judicial system has become a top priority. Civil litigation system, as the bridge between the people and the legal system, is facing comprehensively change in the process of memorable judicial reform. As traditional theory of civil procedural has many shortcomings and deficiencies, a new subject is emerging for perfecting civil litigation system. Analyzing civil litigation system from the perspective of forensic linguistics and applying the concepts, ideas and methods of forensic linguistics into research of civil litigation theory is the key thought of this new subject.

Traditional scholars of civil litigation didn’t pay enough attention on rules of written, vocal and body language used by judges in the courtroom trials during past years. Most researchers get used to observing the operation of court from the perspective of third party instead of professional judges. Considering this situation, this paper attempts to fill in this gap. At first, this paper focuses on rules of courtroom discourse from the perspective of civil litigation system. Furthermore, this paper not only concentrates on discourse in the trial process but also languages used by judges and related parties in the process of making decision. The angle of this study is judge’s point of view and the purpose of this study is to safeguard judicial justice and promote the high-efficiency operation of civil action.

Applied linguistics and litigation law, as two separate disciplines, have their own strengths and weaknesses. The purpose and mission of forensic linguistics is to exploit the advantages of those two subjects to the full. The ultimate purpose and value of this paper is course of justice. The goal direction of this paper is judicial power operation under the concept of rule of law in China. The perspective is rules of courtroom discourse in the civil litigation process. The research methods applied in this paper are comparative research, archival research, empirical research, and linguistic analysis. The dissertation applies forensic linguistic to analyze the existing issues in the civil litigation, especially in the trial, deliberation of collegiate bench, professional judges’ meeting and judicial committee’s discussion stages. The dissertation also puts forward corresponding settlement measures in detail.

The dissertation includes three parts, introduction, body of text and conclusion. The first part introduces research background, literature review, the characteristics, innovation, methodology and research route of the study. Totally, there are six chapters in the body of the text.

The first chapter discusses the classification of courtroom discourse. For analyzing rules of languages, it’s necessary to classify types of language. Firstly, this chapter introduces the necessity of classification of courtroom discourse and the requirements for classification. The existing classification methods don’t meet the requirements, so this chapter suggests new way of classification, which is discourse of power, discourse of right, discourse of obligation and auxiliary discourse. This is a unified classification applied both in the trial and in the process of making decision.

Chapter two illustrates the function and effect of court discourse. To realize the value of judicial justice, act as guide of social governance and protect justice of individual case and solve disputes are the three functions of court discourse. These functions can be called function of value, function of guideline and function of control for short. Function of value has top priority among three functions. Besides, court discourse has multiple effects, different in trial stages and closely related with judicial process.

Chapter three analyzes rules of discourse of judges in the court hearing stage. Learned from the classification method by illocutionary force in Austin’s theory of speech acts, this chapter firstly classifies discourse of court hearing as five types, expositives, behabitives, commissives, exerctives and verdictives. Furthermore, this chapter argues about the rightness of applying theory of speech acts into research of courtroom discourse. Courtroom discourse should show rational art and pursue stability of procedure and maintenance of order of litigation. Lastly, this chapter proposes five rules of discourse of judges in the court hearing stage.

Chapter four focuses on rules of discourse in deliberation of collegiate bench. Collegiate bench is the most common group decision making organization in the court. Discourse of collegiate bench is the most popular vocal languages in the court internal organization. During the process of deliberation of collegiate bench, it’s necessary to set rules of discourse from the perspective of order of speech, silence right, dissenting opinions. The goal of discourse of collegiate bench should be equality and autonomy. The discourse could be improved from six aspects.

Chapter five introduces professional judges’ meeting and the rules of discourse in the meeting. This meeting originates from joint meeting of chief judge and it’s a new development of judicial reform. The existing organization law and three litigations have not prescribed this meeting yet. Since professional judges’ meeting is consulting body for decision-making and functions separate from other system, discourse is different from collegiate bench and judicial committee. The president of the court of the discussing case should not participate in professional judge’s meeting. The members of this meeting can abstain from discussion. The discussion should be limited to one time. The discourse of professional judge’s meeting should pursue the goal of autonomy and mutual assistance.

Chapter six illustrates rules of judicial committee discourse. This chapter reviews history and development of judicial committee and puts forward four suggestions to overcome disadvantages of committee system and make it better. The goal of discourse of judicial committee is democratic centralism. The discussion should be free, full and equal. For improving judicial committee system, chapter six proposes several rules of committee discourse in the final part.

Finally, this paper concludes building on the above research. Firstly, courtroom discourse could be classified as four types, which is discourse of power, discourse of right, discourse of obligation and auxiliary discourse. This new way of classification has great importance both on theory and practice. Secondly, judge’s discourse and litigation system are equally important. Judge’s discourse could represent the condition of litigation system and promote the effective operation of litigation system. Therefore, it’s really necessary to study and improve rules of judge’s discourse. Thirdly, reform of language operation system used among judges should be on the schedule in accordance with value and rules under Robert’s Rules of Order. In the meantime, this paper sums up the practical value and shortcomings of this research program and predicts the profound changes and challenges of court discourse in the coming era of artificial intelligence .

Date of Award	22 Jun 2018
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Wenwei GUAN (Supervisor)