Original title = What are judges thinking when writing a judgment in a complex case?
Author=Tian Langliang (Visiting Professor, Peking University School of Transnational Law, former Judge of the Supreme People's Court)
Source = Mai Reading Micro Lesson, WeChat Public Account |
Note: The first draft of this article is based on the content of the audio recording of the lecture "How to Read the Judgment of a Complex Case?" in the microphone reading public course, so the text retains the colloquial style of the lecture.
1. What is a difficult and complex case?
In short, a difficult and complex case is a highly controversial case. In fact, when such a case is deliberated by the collegial panel, there is a great deal of internal controversy; there are often differences between the collegial panel and the court or division president who has the authority to issue the case; and when it is finally submitted to the judges' meeting/adjudication committee for discussion, there are also different voices.
Of course, no matter how difficult a case is, the judge cannot refuse to adjudicate it, and in the end it will definitely form a majority opinion or a minority opinion, but for example, the majority opinion of the judge will be eight votes, and the minority opinion will be six or seven votes, but in fact, there is no huge disparity and overwhelming majority opinion. When the case is submitted to the adjudication committee, the adjudication committee may also have a relatively fierce or close minority opinion. There is no doubt that such a case is a difficult and complicated case.
I need to share with you one of my own feelings, that is, because most of the courts in the mainland are middle and basic courts, a large number of lawyers, legal advisers and other legal colleagues also deal with middle and basic courts most of the time. However, I have always said that there are actually two kinds of courts in China, one is the high-level courts, including the Supreme People's Court and the high courts of various provinces and municipalities directly under the Central Government, and the other type of courts are the intermediate and basic courts. There are actually great differences in the way they handle cases between these two types of courts, including the process of handling cases. The so-called major, difficult, and complex cases that I want to share today mainly refer to some points worth sharing in the course of the case in the high-level courts, as well as the corresponding embodiment in the judgment documents.
2. To whom the judge's judgment is first written
When I first entered the court, my mentor (a senior judge) taught me that the verdict should first be written for the losing party. In fact, in many cases, after the winning party gets the judgment, he first turns to the last page, that is, he looks at the judgment, which is traditionally called the main text. Then he mainly looks at the main text, whether he wins or not, the winning side, and how much money the other party wants to give me. If all of his claims are supported by the main text, then he will not read it in detail; only the losing side will say, I don't think I should give money, but the court has sentenced me to give money to the other party, and the interest awarded is still very high, then I must see which evidence the judge determines which fact applies which law and sentences me to give so much money, and he will interpret the full text of such a judgment word by word.
Therefore, the judgment must be written first to the losing party, and there is a commonly known highest state called "victory and defeat". In fact, the winner is convinced, and the winner of course accepts, needless to say, the main difficulty is that after the losing party reads the verdict, he feels that he has lost clearly and convincingly. In reality, this situation is not completely impossible, but I think the possibility is still relatively small, and it is very difficult. In fact, many times after the judgment is written, on the one hand, it is necessary to convince the losing party that it is reasonable and justified for us to judge you, from the evidence to the facts to the application of the law, and it is not a blind judgment, and on the other hand, it is also to tell him that the judgment is beautifully written, and you have to find fault with it is not so easy to pick, and it is very difficult for you to try to overturn the judgment through appeal or application for retrial.
3. The judgment is written to whomever it is written
The second person who writes the judgment is not the winning party, but the judge who will subsequently hear the case. That is to say, if this is a first-instance case, the judge will consider what the judge of the second instance will think of it when writing it, and if it is a second-instance judgment, then the judge of the second instance will consider what the judge of the retrial will think if the parties apply for a retrial.
For example, we often see in court judgments that there are expressions such as "the plaintiff can assert a separate lawsuit/may claim through other legal channels", and there is no logical reasoning relationship between such a separate statement and the adjudication result. Why? In fact, the judge who wrote the judgment was telling the judge who subsequently tried the case, "I know that there is a certain amount of controversy in this case, but even if you do not agree with the conclusion of my judgment, there is no need to change my judgment, because the substantive rights of the party concerned have not been extinguished, and he can completely obtain relief in a separate case."
Moreover, we also know that there is no real, complete and thorough final adjudication system in China, which means that it is actually difficult to achieve the final adjudication of our second instance. Of course, the second instance cannot be completely finalized, which is not necessarily a bad thing. On the other hand, because our country has a vast territory, different levels of economic and social development in various places, and so many provinces, and there are four levels of trial, if the jurisdiction is subsided, the final trial of the second instance is really completely achieved, it may not be a good thing for the relief of the legitimate rights of the parties in major civil and commercial cases.
Therefore, if a case in our country goes down in accordance with the procedures of the law, a case can be appealed if it is not satisfied in the first instance, and it can be applied for a retrial if it is not satisfied in the second instance, and if the application for retrial is rejected, it can also apply to the procuratorate for a prosecutorial counter-appeal, and if the application for a counter-appeal is not supported, it can still apply to the procuratorate's higher-level procuratorial organ for a review. In this way, the judge who writes the judgment will always be aware that even if he writes the second-instance judgment of the Supreme People's Court in civil and commercial matters, after writing, if the judgment is really problematic, it will continue to be challenged by the parties in the future, and may even be changed by the Supreme People's Court's trial supervision division after a retrial. In this way, there is a high probability that the extreme bias of the judgment results of individual cases can be avoided. This is why I said before that the final trial of the two trials may not be a good thing if it is absolutely implemented.
Fourth, what kind of mentality do judges have when writing judgments in complex cases?
As a judge of a national court, there is no doubt that when writing judgments, we should pursue fairness and justice and be reasonable, and we do not need to repeat this point. In addition to this most important premise, what else should the judge consider? He also has to consider two risks: the first risk is to avoid the risk of appeal or retrial and reversal of judgment, that is, the risk of changing the judgment, and the second risk is to avoid the risk of the parties making trouble with their petitions, that is, the risk of petitioning.
Of course, some legal colleagues may say, should we also consider whether the case will be enforced after the verdict is completed? Theoretically speaking, when the judge of the trial court writes the judgment, he should take into account the issue of enforcement, and make the judgment easy to enforce. However, as far as I know, most judges in trial divisions will of course consider the issue of enforcement in general when writing judgments, but they will not give too much consideration to the details of whether it is convenient to enforce such judgments (in fact, most judges in trial divisions do not know much about the details of enforcement). This is the old saying in the past, the railway police, each in charge of a section, that is, the judge is in charge of the judgment, and the issue of enforcement after the judgment is mainly a problem to be solved by the Executive Directorate, and it has nothing to do with the trial court. Moreover, colleagues in the court's enforcement department have many ways to solve various problems when they are enforcing them.
In order to avoid the two risks we are talking about here, the risk of changing judgments and the risk of petitioning, judges first need to avoid "hard injuries". Because when the second instance is changed to the first trial, and when the second trial is changed to the second trial, it is often said that the original trial has "hard injuries" during internal discussions, so it needs to be changed. The expression corresponding to "hard injury" is often the so-called "problem of understanding". What are the common "hard injuries"? Here is an incomplete list. For example, if the evidence of the facts ascertained by the original trial has not been cross-examined, this is a "hard flaw" that is difficult for the judge of the second instance or retrial to resolve, so when the judge of the first and second retrial holds a trial, he will repeatedly ask both parties whether there is any new evidence, and if so, take it out and cross-examine the other party. Therefore, when I give lectures to in-house counsel and lawyers on litigation document writing, I will also repeatedly emphasize that new evidence must be highlighted and prompted in the evidence book, and if there is no new evidence, the fact that there is no new evidence should be clearly written in the table of contents of the evidence book. There are also "hard flaws" such as the obvious lack of evidentiary support for the facts ascertained, as well as the obvious error in the understanding of the law. Of course, here you can think about whether the determination of facts is more likely to have "hard injuries", or is it more likely to be "hard injuries" in legal determinations?
5. Five methods of argumentation commonly used in judgments in complex cases
As we have just mentioned, some factual or legal issues are themselves quite controversial, and there are differences during collegiate discussions, and in fact, it is difficult to say that there is a single correct answer, so when the judge writes the judgment, he must consider what if the judge of the subsequent second instance or retrial has the opposite view of me? How can I make the judge of the second instance or retrial uphold my judgment even if it is contrary to my view? Here we need some skills in argumentation and expression. In my personal summary, there are at least the following five argumentation methods that often appear in complex case judgments: transfer argument, saturation argument, concession argument, preparatory argument, and packaged argument.
Let's use an example to illustrate what a transfer argument is, please see the following three different ways of expressing the same matter: "(1) the conduct of the defendant company B in the performance of the contract in this case does not constitute a breach of contract; (2) the claim of the plaintiff company A that the defendant company B has breached the contract in the performance of the contract cannot be established; and (3) the claim of the plaintiff company A that the defendant company B has breached the contract in the performance of the contract is not supported. The first expression above is a God-like perspective of ex officio, where the court makes a very objective determination of a matter, which we can see as an active argument of the court. The second and third ways of expression are transfer arguments, where the court does not take the initiative to make an argument, but a refutation of a certain claim of a party, thus shifting the burden of argumentation more to the parties, that is to say, the court does not determine that the matter asserted by your party is caused by your party's own ineffective evidence and argumentation in the litigation.
Next, let's talk about what a saturation argument is. I use a few simple formulas to illustrate: "Saturated argument: A + B + C → conclusion." Unsaturated arguments: A→ conclusion, B→ conclusion, C→ conclusion. In other words, A, B, and C alone can come to the same conclusion, but when we write the judgment, we write A, B, and C all to support the same conclusion. The advantage of this is that in the subsequent second instance and retrial, even if the parties come up with new evidence to overturn A or B, as long as C has not been overturned, the conclusion will not be overturned, that is, the case will not be reversed. When I was writing the civil retrial judgment of the Supreme People's Court (2015) Min Kang Zi No. 2 in the case of a dispute over a sales contract between Chen Mouqing and Da Construction Corporation, in order to prove that there was obvious fault in the management of the Beijing branch of Da and its person in charge, Hu Mouhe, in this case, I adopted the method of saturation argumentation, and the specific text of the judgment is as follows: " First, before and after the expiration of the contract period between the company and Hu in February 2007, the company failed to complete the handover between the company and Hu Mouhe, and the company withdrew the seal and financial seal of the Beijing branch of the company engraved by Hu Mouhe in 2004 (hereinafter referred to as the 04 financial seal) from Hu Mouhe , but failed to recover in time the special contract seal of the Beijing branch of a company engraved by Hu and in 2004 (hereinafter referred to as the contract chapter of 04); Second, on May 31, 2007, the relevant materials of the industrial and commercial annual inspection of the Beijing branch of a certain company and on July 17, 2007, Hu and the Beijing branch of a certain company signed with Yang Mouxi and others on behalf of the Beijing branch of a certain company, all of which were stamped with the above-mentioned 04-year contract seal; As late as February 18, 2008, when the first-instance litigation trial of this case was heard, Hu Mouhe still appeared in court at the same time on behalf of the Beijing branch of Da and the authorized agent of Da Mou, and there was no objection to the identity of Hu Mouhe on behalf of the Beijing branch in court; Fifth, in the steel purchase and sale transaction between Yang Mouxi and Jing Mouze Company in the name of the Eighth Project Department of the Beijing Branch of Da Mou Company, the Beijing branch of Da Mou Company issued a transfer check dated January 16, 2008 to Jing Mouze Company, and the transfer check was entrusted by the court to appraise, the financial seal of the Beijing branch of the company stamped on it is precisely the 04-year financial seal that the above-mentioned company has recovered from Hu in January 2007.
Next, let's talk about the concession argument. The concession argument is actually very simple, that is, does one party not claim A to argue that it does not need to be held liable? (of course, at this time, the other party often says that A's claim is not valid, that is to say, whether A is established or not is itself a focus of dispute) The judgment will say that even if A is established, you still need to be liable. We can look at this judgment in the (2014) Min Er Zhong Zi No. 56 Civil Judgment of the Supreme People's Court, "China Aviation Oil Shanghai Company and China Construction Trading Company signed the Framework Contract, stipulating that China Aviation Oil Shanghai Company would purchase fuel oil from China Construction Trading Company. China Aviation Oil Shanghai Company did not deny the signing of the Framework Contract and the contents contained therein, that is, it had no objection to the authenticity of the form of the Contract. China Aviation Oil Shanghai Company argued that the contract involved in the case was a false contract between the two parties to 'take orders, tickets, and not goods', and was not a sales contract in the true sense, and that the purpose of signing the contract was to increase the output value and complete the performance appraisal, and to deny the sales contract relationship established between the two parties on this ground, which had no basis in law. Even if, as claimed by China Aviation Oil Shanghai Company in its defense, the objective facts of the transaction of 'taking orders, taking tickets, and not taking goods' exist, after the two parties signed the Framework Contract to establish a sales relationship, China Aviation Oil Shanghai Company issued a "Certificate of Receipt" to China Construction Trading Company to clearly indicate that it had received the goods under the contract involved in the case, and China Construction Trading Company also issued a "Beijing VAT Special Invoice" for it in accordance with the requirements of China Aviation Oil Shanghai Company, it cannot be based solely on the fact that China Aviation Oil Shanghai Company did not actually pick up the goods. 'not going to go', denying the legal relationship between the two parties that has been formed. In the absence of a clear mandatory prohibition in the current laws and administrative regulations of the mainland on the so-called transaction method of 'taking orders, taking tickets, and not taking goods', and the intention of both parties is genuine, China Aviation Oil Shanghai Company claims that the sales contract is invalid on this ground, and this court does not support it." The above paragraph is a typical concession argument.
Then let's look at the preparatory argument. This is a more skillful way of reasoning about judgments. Let's take a look at this judgment in the Supreme People's Court's (2018) Zui Gao Fa Min Zhong No. 268 Civil Judgment, "A Tang company submitted materials to the National Development and Reform Commission in the second-instance trial to apply for a re-assessment of the reserves of a certain ditch coal mine, and this court believes that the evidence submitted by it can only prove that it has submitted relevant materials, and cannot negate the previous agreement between the two parties." What's more, from the point of view of the time of payment in the agreement between the two parties, except for the first payment terms for the relevant parties to sign the performance agreement of equity transfer and complete all industrial and commercial change registration, the payment terms of the remaining periods are all pointed to the corresponding time from the date on which a mining industry obtains the approval documents of the National Development and Reform Commission for the project, which can confirm that the date of the approval documents of the National Development and Reform Commission for the project should be the specific direction expected by both parties, and cannot be understood as the date of approval without time and number of times, otherwise the payment date of the equity transfer money will always be uncertain, which is contrary to commercial transaction practices and the principle of good faith。 It should be pointed out that the focus of this case is not the confirmation of the resource reserves in the mining area, let alone the distinction and determination of the examination and approval authority of the state functional organs, but only the negotiation and determination of the equity transfer price between the two commercial entities. Therefore, in accordance with the equity transfer agreement and in combination with the facts involved in the case, the transfer of the equity involved in the case has been completed, and the approval documents of the National Development and Reform Commission for the project as agreed in the contract have also been issued, and the parties have not formed a new agreement to change the equity transfer price since then, so the payment terms for the fifth and sixth phases of the equity transfer price disputed in this case have been fulfilled. According to the above-mentioned agreement on liability for breach of contract in the Equity Transfer Agreement, a Tang company fails to perform its contractual obligation to continue to pay the equity transfer price, which is a breach of contract, and it shall pay the unpaid part of the amount as agreed in the agreement, and shall pay liquidated damages in accordance with the agreement." This judgment prevents the reserves re-verification documents that may be issued by the National Development and Reform Commission after the judgment is rendered, and even if a certain Tang company does obtain documents with the content it claims, it is difficult to shake the judgment in this case that it has already taken precautions.
Finally, let's look at the packaged argument. Packaged arguments should have been seen a lot of them in normal times. For example, if we determine that the faults of A and B are divided into primary and secondary, but the 91 open, 82nd open, 73rd open, and 64th are all the main and second of A, so how much is the specific determination? At this time, we list all the factors that can be listed and should be considered in the judgment, and finally determine a specific proportion. When determining the amount of compensation, it is also common to have a packaged argument. Let's look at this judgment in the civil judgment of Beijing Xicheng District People's Court (2019) Jing 0102 Min Chu No. 9546, "In view of the fact that Arctic Ocean Beverage Company has not adduced evidence to prove the economic losses suffered by it due to the infringement involved in the case or the infringement profits of the two defendants, this court will determine the amount of compensation based on the following factors: 1. The packaged goods involved in the case have been widely publicized through large advertising investment, which has a certain influence and is well-known; After the Arctic Ocean's word trademark was unsuccessful, the two defendants, as producers, 3. The defendant claimed that it had started production and sales since May 18, 2018, but as of the date of the trial, there was no evidence that its infringement had stopped, so the infringement lasted for more than one year and the infringement period was relatively long; 4. The defendant's goods were sold in Beijing and Shandong, with a wide range of sales. Based on the above factors, this court decided that the two defendants should compensate Arctic Ocean Beverage Company for economic losses of 300,000 yuan." Before determining the specific amount of 300,000 yuan, four considerations were also listed for a packaged argument. We can imagine that, assuming that the fourth factor is not listed in this judgment, can the plaintiff write in the appeal that the compensation amount in the first trial is too low because it does not take into account the important factor of a wide range of sales of infringing goods?
6. Whether there is a common structural framework for the judgment
Let's take a look at the five-level structure of the judgment, which is supported from bottom to top, with the lowest level being the "evidentiary materials"; then based on the evidentiary materials, the "court's ascertainment", that is, the determination of facts; the higher level is the corresponding "legal provisions", because these facts can constitute the essential facts for the application of a certain provision, and the upper level is "this court believes", which is actually the legal effect of applying to a specific legal provision, and finally the top layer is the main text of the judgment, that is, the content of "the judgment is as follows". Of course, each level of the five-level structure of "evidentiary materials→ "ascertained by this court", → "legal provisions", "→ judgment is → this court believes is as follows", also corresponds to the claims of the parties. For example, the evidentiary materials are basically submitted by the parties, and the ascertainment corresponds to the facts asserted by the parties, and the legal provisions are generally the legal provisions on which the parties' claims are based. The distinction between "this court's ascertainment" and "this court's opinion" lies in the fact that the facts on which the "court's opinion" is based should have already been ascertained in the "court's ascertainment", and a fact that "this court believes" cannot suddenly emerge in the "court's opinion" without argumentation.
To sum up, it is not easy for judges to write judgments, especially when encountering difficult and complex cases, they often sleep thinking about how to judge the case so that there is nothing wrong, and sometimes they will wake up in the middle of the night and then get up early the next day to rush to the court office to check the details of the evidence in the case file. Finally, I hope that my sharing can also have some reference value for my legal colleagues engaged in administrative and criminal business.
Answer: Generally speaking, the determination of facts is more likely to have the so-called "hard injury" than the determination of law.
【About the Author】
Tian Langliang, LL.B. from China University of Political Science and Law, LL.M. from Peking University, and visiting professor at STL, has served as a judge of the Trial Supervision Division of the Supreme People's Court for a long time and a member of the Serious Case Supervision Group, and has been engaged in the trial and arbitration of various difficult and complex civil and commercial cases such as finance, real estate, construction, equity, and contracts for 17 years.
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