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Xu Chen | How to Judge Difficult Cases through Discussion Mode: Taking the Case of Compensation for Special Physical Infringement Damage as an Example
2023-07-25 [author] Xu Chen preview:

[author]Xu Chen


How to Judge Difficult Cases through Discussion Mode: Taking the Case of Compensation for Special Physical Infringement Damage as an Example

*Author  Xu Chen

Lecturer School of Administrative Law, Southwest University of Political Science&Law and Doctor of Law

Abstract: The argumentation and reasoning of difficult cases is an important topic in judicial research, and the discussion model may provide a new approach to solving this problem. Taking cases of infringement of special physical fitness as an example, the discussion model respects the basic concerns of doctrinal theory and incorporates a cohesive approach, categorizing the contentious points of such cases as "fair" and "equal" legal discussion competition. By reflecting on the normative and outcome oriented models, the discussion model aims to integrate differences and resolve difficult cases, limiting the process of discussion with "pre interpretation conditions", "priority", and "effectiveness". At the same time, it introduces "the integration of the discussion system" and "the testing standards of discussion" to construct the working procedures of the discussion model, in order to solve conflicts between plural discussions, Draw the final judgment on difficult cases.


The core issue of difficult cases may be how to choose between the plural options brought about by "legal uncertainty". In recent years, "sociology of law as a topic of discussion" has provided a procedural approach to solving difficult cases. The Mode of Argumentation "is the specific application of" sociology of law as argumentation "in the field of difficult cases and judicial reasoning. The "discussion" in the discussion mode refers to the propositions and arguments put forward by all parties involved in legal practice to prove their own views on relevant issues. In difficult cases, discussions can be roughly divided into legal discussions, moral discussions, social discussions, and policy discussions: legal discussions refer to the reasoning or argumentation of the judgment results obtained through specific legal methods or techniques, starting from the standards or principles within the legal system; Moral discourse refers to the elaboration and argumentation of moral viewpoints and whether they should have an impact on the judgment through weighing and reflection; Policy discourse generally refers to the proposition that judicial adjudication can and should be used as a means to achieve policy objectives, as well as proof of the function of this means; Social discourse is generally divided into two types. Firstly, it describes or explores the phenomena or principles of external factors such as society, politics, and economy that affect judicial decisions. Secondly, it proves and predicts the possible interaction between judicial decisions and the aforementioned factors. In the process of adjudicating difficult cases, the above four discussions may have more or less influence on the final judgment.

The traditional approach of the academic community in China to study difficult cases can be roughly summarized as the "normative oriented model" and the "outcome oriented model". Compared to the above models, the discussion model may have the following advantages: firstly, the normative orientation model emphasizes that difficult cases should be resolved through legal discussions. However, if there are multiple legal discussions that have been fully demonstrated but conflict with each other, it seems that relying solely on the normative orientation model itself cannot determine which legal discussions should be adopted; Although the argumentation model agrees with the pursuit of certainty in the normative orientation model, it believes that legal argumentation needs to overcome the tendency of idealization and form mutual confirmation with other argumentations in order to better enhance its own level of argumentation and explanation; 2The result oriented model emphasizes the rationality of judgments and advocates that judges should consider or even prioritize policy and social discussions; Although agreeing with its rationality considerations, the argumentative model believes that such considerations may be limited by factors such as "pre interpretation conditions", and that only by passing corresponding tests can we avoid the fragmented tendency of "one matter, one discussion" in judgments, and balance the rationality and certainty of judgments.

One of the requirements put forward by judicial practice for legal theory is to answer how judges should solve difficult cases, which is also the goal of the discussion model. On the basis of reflecting on two traditional approaches, the discussion model aims to provide a set of working procedures: judges can, guided by this procedure, discern and judge the effectiveness of plural discussions, find a discussion or discussion system as the "maximum common denominator", and use it as a basis to obtain judgments on difficult cases. Although the concerns of the "legal society as a forum for discussion" are not limited to difficult cases in judicial adjudication, but also include broader concerns such as examining the adjudication mechanism from the perspective of the judicial system, there seems to be a lack of attempts in the domestic academic community to combine the "forum model" with specific difficult cases, and there is also a lack of reflection on traditional adjudication theory, Provide clear and specific guidance on how judges should make judgments based on the mode of discussion. Therefore, the scope of this article will be limited to the specific field of "how judges judge specific difficult cases", and attempt to answer the core question of "how to reach a judgment through discussion mode" in difficult cases by taking infringement compensation cases involving the special constitution of victims (hereinafter referred to as "special constitution infringement cases") as an example.

1Special Constitution Infringement Cases as Difficult Cases

And its traditional judgment mode

1.1 Definition of Difficult Cases and Special Physical Infringement Cases as Difficult Cases

Before exploring how to solve difficult cases through discussion mode, it is necessary to define and explore two levels of "difficult cases" and "special constitution infringement cases": (1) What is a difficult case in the academic sense? According to different theories, what types can it be classified into? (2) According to the definition of question (1), is a special constitution infringement case a "difficult case"? If so, what type of "difficult case" does it belong to?

According to different viewpoints in the academic community, difficult cases can be summarized as difficult cases at the levels of legal discourse, moral discourse and policy, and social discourse: difficult cases of legal discourse often involve a "imbalance" between norms and facts. Under this type, according to the different causes of difficult cases, it can be divided into four sub types: (1) "lack of norms", that is, legislators failed to foresee the specific situation or development trend of social life, so the law did not cover a certain kind of facts at all, which is called "open loopholes" of the Larenz style; (2) "Linguistic vagueness", that is, the vagueness of Legal writing leads to Hart like "uncertainty in the border zone" of legal writing, so the plural understanding of how to understand the existence of Legal writing; (3) Conflict of application "refers to the application of plural conflicting legal norms in the same legal system for the same case; (4) There are debatable different positions regarding the content of the law or how it should be understood.

Difficult cases of moral debate often involve the moral legitimacy or moral acceptability of judgments. Such problems can also be divided into two categories: (1) In some difficult cases, due to the "imbalance" between norms and facts, judges have to consider the legal Value judgment or moral concepts to determine the final winner. The difficulty of the case is how to judge the value rank and the weight of moral concepts; (2) Some scholars believe that there is still a type of "controversial case": in some difficult cases, the strict application of specific legal arguments in the judgment will form opposition to the moral arguments of the parties and the public, resulting in the judgment not being accepted. Therefore, the difficulty of the case lies in balancing the impact of such "extralegal" moral arguments on the final judgment. In order to strictly distinguish between legal discourse and moral discourse, the "moral discourse" in the following text only refers to the "external moral discourse" of type (2) above, and does not include the "internal moral (value) discourse" of type (1) as a special legal discourse.

Difficult cases related to policies and social discussions often involve the relationship between the judgment results, social effects, and political effects. Some scholars refer to this type of difficult case as a "difficult case". For example, strict application of the law can lead to certain unwanted outcomes outside the legal system, or the inability to achieve certain desirable outcomes, so judges must weigh the impact of such outcomes on judgments; Some scholars believe that judicial decisions should consider the factors of policy implementation, such as making different judgments on specific types of doctrinal concepts during special periods, or distinguishing relevant cases based on policy considerations to maintain stability; Some scholars believe that the internal assessment system and various indicators within the court system can also easily affect the judgment of judges. For example, in order to pursue a higher completion rate or save judicial resources, judges will actually adopt more diverse practical methods in certain cases to achieve a social effect of peace.

After defining "difficult cases", it is necessary to explore the second type of question: whether special constitution infringement cases belong to difficult cases? If so, what type of difficult case does this type of case belong to?

In Guiding Case No. 24, the Supreme People's Court pointed out that "the victim of a traffic accident is not at fault, and the impact of their physical condition on the consequences of the damage is not a legal situation that can reduce the liability of the infringer. In the exception of the guidance case, there is no clear legal provision in China. When the victim has a special physique, the court should not consider the individual's special physique factors when determining the compensation liability of the perpetrator; Similarly, there is no clear legal provision that courts should consider the above factors. Our country only stipulates in the Civil code that "if the infringee is at fault for the occurrence or expansion of the same damage, the liability of the infringer can be reduced". However, whether the special physical or psychological constitution of the victim can be equated with "fault" in the legal evaluation system is another controversial issue. In terms of judicial practice, for such infringement cases where damage occurs or expands due to the special physical condition of the victim, the judgments and reasoning of people's courts at all levels and regions also present different positions.

Obviously, the lack of legislation, the existence of differences, and the limitations of guiding cases have made the special constitution infringement case a difficult case with a "lack of norms" in legal discourse. Such cases are not only not rare in China's judicial practice, but have also attracted widespread discussion in the field of tort law. The special constitution infringement case also contains ethical arguments: for example, when there is a legislative gap, are there different values within the legal system to determine the judgment of the case? For example, can a judgment that presumes the victim's special physical condition as negligence be accepted by the moral values of one party, multiple parties, or the public? These issues all need to be explored. From the perspective of policies and social discussions, there are also difficulties in determining in the special cases of physical infringement discussed in this article. For example, in cases of infringement of the right to life, the victim and their family members' concept of "life is of paramount importance" and their possible excessive behavior choices are not conducive to achieving the policy goal of maintaining stability. Strict application of the law may lead to excessive reactions or even revenge actions by the family members; On the other hand, the judge has to think about whether it is helpful to reduce the Social cost, or to reduce the probability of such infringement events, for the perpetrators to bear all the responsibilities. In summary, it can be considered that this type of case belongs to any of the difficult cases defined earlier.

1.2 Two Traditional Judgment Models for Special Physical Fitness Infringement Cases

According to the mainstream viewpoint in the academic community, the thinking and methods of adjudicating difficult cases can be roughly divided into two categories: firstly, starting from legal argumentation, emphasizing "abstract to concrete" reasoning and argumentation, and emphasizing the normative orientation mode of judgment certainty; secondly, starting from policy and social discourse, emphasizing "reflective norms based on results", and emphasizing the result orientation mode of proving the rationality of judgments.

The normative orientation model first includes doctrinal theories. Doctrinal theory, as the primary option for solving difficult cases, emphasizes the use of rigorous formal reasoning and comprehensive explanatory techniques in legal methods to address the imbalance between norms and facts. Its advantages lie in that, on the basis of describing and affirming effective legal norms, it fully demonstrates the legitimacy of judgments, maintains the Completeness and integrity of the legal system, and realizes the function of "fixed" adjudication methods through detailed "norm practice" operations. At the same time, some doctrinal viewpoints also emphasize the importance of Value judgment and the relevance of moral argument and legal argument. Secondly, the normative orientation model also includes the theory of coherence. In order to solve the problem of Value judgment, some doctrinal studies introduce Alexian "coherence" as a weight to weigh, and advocate judges to use legal methods to "interpretative construction". This attempt is similar to the "interpretive model" proposed by Dworkin in the Anglo American legal system: this model emphasizes that judges should provide a "constructive interpretation" of the legal system as a whole under the dual guidance of legal and moral discourse.

Specifically, in the case of infringement of special physical fitness, the normative orientation model believes that the difficulty of special infringement cases lies in the "causal relationship". Both doctrinal theory and judicial practice will not deny the causal relationship between the establishment of responsibility in such cases, that is, the causal relationship between the infringing act of the perpetrator and the infringement of the victim's civil rights and interests. Such causal relationships may exclude certain cases that do not constitute infringement from the scope of consideration. Only when the "causal relationship of liability establishment" is met can the second level of "causal relationship within the scope of liability" be considered, namely the legal causal relationship between the infringer's infringement behavior, the victim's special constitution (or "element cause"), the victim's fault (including the victim's duty of care), and the damage result. In special constitution infringement cases, there must be a factual causal relationship between the perpetrator's infringement behavior, the victim's special constitution, and the damage result; Therefore, the role that the special constitution of the victim, which cannot be excluded from the causal relationship in fact, should play in the legal causal relationship within the scope of responsibility, and its impact on the victim's duty of care, have become the core issue of such difficult cases.

There are two opposing views on the normative orientation model regarding this issue and its derivative issues: one advocates for resolving the division of responsibilities and related issues based on the values of "equality" and "fairness". Both emphasize the need to grasp the "key points" or "concepts" of departmental laws or legal systems, and provide solutions to difficult cases guided by various "key points" and "concepts". The "equality" plan emphasizes that the law should not treat health victims differently from those with special physical conditions, and should protect the right to life and health of every citizen with the same intensity. Therefore, in principle, the responsibility of the perpetrator should not be reduced due to the special physical condition of the victim; The "fairness" plan emphasizes that the law should ensure the fairness and acceptability of responsibility distribution, and ensure that all parties assume their due responsibilities based on reasonable principles of attribution, and do not assume what they should not; Therefore, specific analysis should be conducted on specific issues, and appropriate consideration should be given to whether the responsibility of the perpetrator should be reduced. The most significant advantage of the two options is that they have an internal coherence: they first weigh the weight of conflicting principles or values, and then respond to the doctrinal differences that are already interconnected with each other with more important principles and values. In the final formed argumentation system, principles, values, and conclusions are mutually supportive and consistent.

The 'result oriented model' is based on criticism of the 'normative oriented model', with the most typical criticism coming from policy and social discourse. This viewpoint emphasizes that in the real judgment process of difficult cases, the "result oriented" judgment thinking often leads judges to deviate from the normative oriented mode of reasoning, and more consider the political, economic, or social impact that the judgment will cause. Therefore, from the Pragmatism point of view, it is advisable to acknowledge the idealism halo in the normative orientation model, admit that judicial adjudication has the function of "means end", and make practical trade-offs on individual cases according to different situations.

In response to cases of infringement of special physical fitness, some doctrinal assertions have also been adapted from the result oriented model to rescue soldiers. For example, the doctrinal view of appealing to the value of "fairness" has turned to law and economics to prove the rationality of fair compensation liability in terms of results: if the allocation of responsibility is not balanced fairly, it will cause thousands of potential infringers to increase the cost of attention, which is inevitably higher than the cost of reducing risk through special attention by a very few special physical groups, because victims have a "stronger risk prevention ability". Therefore, resorting to "equal" judgments will lead to an increase in overall social costs - rather than forcing 10000 drivers to lower their original legal speed, it is better for a few osteoporosis patients to choose more cautious and safe travel options.

The fundamental reason for the conflict between the result oriented model and the normative oriented model lies in: to what extent should judicial decisions respect the requirements of legality and legitimacy? To what extent should a judge's decision-making approach be constrained by legal norms? According to different views on this issue, the result orientation model may be further divided into "weak Consequentialism" and "strong Consequentialism".

"Weak Consequentialism" believes that the binding force of legal norms on adjudication should be discussed according to different types of cases: first, in simple cases, because the evidence and facts are clear, and there is no problem in the application of the law, it should be strictly judged according to the law, and it is not allowed to take the place of moral, policy, social and other arguments to make a judgment of overstepping one's authority. However, in difficult cases such as "lack of norms" or "vague language", judges who cannot be relied on are not actually bound by the law, so it is certainly possible to conduct interest measurement and policy thinking to obtain a reasonable judgment on the outcome.

"Strong Consequentialism" is totally different, and this Pragmatism view can be divided into two parts. It advocates in the "descriptive" section that judicial decisions and their processes are not (or at least not entirely) determined by legal discussions, whether in disputed, difficult, or difficult cases. As a part of the political, social, and economic structure, judicial decisions are inevitably influenced by policy and social discussions, and these two types of discussions actually have varying degrees of priority in the judge's thinking process. "Strong Consequentialism" also has its normative part: it advocates that since the decisive value of judicial adjudication is rationality rather than legitimacy, or whether to adhere to the legitimacy of formal rationality depends on whether it conforms to the substantive rationality, judges should first give up their stubborn pursuit of legal certainty, and fully grasp their own political, economic and social structures, so as to better take judicial adjudication as a realization policy A means of social purpose.

2Working procedures for adjudicating difficult cases through discussion mode

In summary, the normative oriented model attempts to balance legal methods and values to maintain the certainty and predictability of judicial decisions, while the outcome oriented model believes that judicial decisions should be reasonable and emphasizes the role of policy and social discussions in the decision-making process to varying degrees. The discussion mode believes that both models may have shortcomings, so it is necessary to introduce concepts such as "pre interpretation limit", "priority limit of discussion", "validity limit of discussion", and "consistency test" on the basis of reflection, to sort out and elaborate on the working procedures of the discussion mode in judging difficult cases, and provide new solutions for judging difficult cases.

2.1  Reflection on the Traditional Model by the Discussion Model

2.1.1 Reflection on the Normative Orientation Model

The norm oriented model and the result oriented model point out each other's shortcomings: in the perspective of the norm oriented model, at least strong Consequentialism may lead to the fragmented dilemma of "one case, one discussion" in judicial decisions; In the perspective of the result oriented model, the normative oriented model may lead to a disconnect between judicial adjudication and policy orientation, as well as social reality, reducing the reasonable function of judicial enforcement policies or resolving social problems.

Specifically, the normative orientation model may have the following two shortcomings: (1) In the difficult cases of the lack of norms, the doctrinal program attempts to resort to Value judgment and legal principles to fill the legal loopholes, but may draw contradictory conclusions; Each type of legal discourse emphasizes the priority of the principles and values it advocates, but it does not seem to provide sufficient justification for why priority should be given. The saying goes, 'A wise man cannot see his own face,' and therefore loses it to arbitrariness; (2) The pursuit of certainty in the law does not necessarily mean that the opinions of judges are consistently correct or do not need to be tested. Simply emphasizing the "positive definition" is inevitably lacking in flexibility: in some cases, the mechanical application of legal provisions in judgments can indeed lead to moral disgust among the public or produce social effects that legislators and judges themselves do not want. Therefore, the main issues of the normative orientation model can be summarized as follows: how should judges who adopt the normative orientation model make choices in legal discussions that conflict with each other and have been fully demonstrated; And, when conflicting legal arguments exist, should judges consider social and policy arguments to balance reasonable recommendations at the outcome level.

In fact, some normative orientation patterns have taken into account the above issues and provided specific solutions. For example, Robert Alexis once pointed out that legal argumentation theory attempts to solve complex conflicting legal arguments by setting a rational set of argumentative rules. In legal gaps or unclear language, if it is still impossible to determine what kind of discourse should be adopted to make a judgment even after exhausting the rules of doctrinal interpretation, the "weight" of plural discourse should be judged "based on the rules of weight". Alexi made two explanations and limitations on this trade-off: (1) This trade-off does not necessarily exclude reasonable considerations in social and policy discourse. However, if such reasonable considerations deviate from the legal context and the purpose of the legislator, then unless the proposer of the reasonable considerations can "provide good reasons for their claim" and can demonstrate that their discourse is superior to those that support the legal context and the intention of the legislator, Reasonable considerations of policy and social discussions should not be adopted; (2) Although the standard for determining the weight of a discourse is not arbitrary, it needs to be left to the people involved in legal arguments to decide to some extent, because both the explanatory context and the legal department are constantly changing, and they never achieve 100% certainty

The argumentation model agrees with the rational approach of "procedural" legal argumentation theory mentioned above, but also believes that its specific operational standard letter needs to be further clarified and extended. In fact, in the special constitution infringement cases discussed in this article, both legal arguments based on "fairness" and legal arguments based on "equality" have been fully explored and confirmed within the scope of doctrinal science, but such exploration and confirmation are not sufficient to provide a specific and clear standard to measure the weight of both parties' views in a specific case. Under this premise, the connection and difference between the argumentation model and the legal argumentation theory are: similar to the legal argumentation theory, the argumentation model also advocates that social and policy argumentation should be self justified through procedural argumentation rules, and should bear the burden of argumentation; Unlike legal argumentation theory, the argumentation model suggests that if there are conflicting and well proven legal arguments for a specific case (such as a special constitution infringement case), then if a specific and proven social and policy argument can form a "coherence of the argumentation system" with one type of legal argument (this concept will be elaborated later), then the social argument The discussion system formed by the combination of policy and legal discussions has a high degree of proof, and judges may prioritize the reasons for this system in their judgments. The discussion model believes that the reasonable consideration of policy and social discussions and the doctrinal argument of legal discussions do not necessarily constitute a conflicting relationship, and in specific difficult cases, different discussions can be combined to form a mutually supportive "integration" relationship.

2.1.2 Reflect on the result oriented model

On the other hand, at least strong Consequentialism also has the following shortcomings: (1) Although the pursuit of rationality by the result oriented model should not be completely denied, if any case adopts the idea of backward application of law, the judicial judgment will fall into the fragmented circle of "one matter, one discussion"; (2) In modern society, the definition of "good" is diverse, and different policy and social discussions pursue different "rationality". Even different judges have different opinions on "what is a reasonable goal" and "how to achieve it"; If there is no standard to test and integrate the differentiated "definition of good" under the premise of the existence of plural arguments, then in the long run, judicial practice will not only lose objective "rationalization" standards, but also undermine the consensus premise that plural arguments can generate, causing parties pursuing rationality based on different positions to fall into a dilemma of mutual shielding and speaking their own words; (3) Strong Consequentialism ignores an important distinction, that is, the distinction between "positive definition" and "good definition"; For example, the argument that a victim with a special constitution cannot legally obtain partial compensation and the claim that losing this compensation is the price he must pay for extralegal practical purposes cannot be equated in any way. The "definition of good" emphasizes the desirability of results, which sometimes seems to have not been fully demonstrated or proven, resulting in its inability to be accepted by participants in judicial practice.

Some academic views of Consequentialism also respond to the above shortcomings, for example: (1) justice is a process of dispute resolution. In this process, because all parties actually hope to maximize their interests through justice, the parties' strong strategic orientation will lead to difficulties in forming legitimacy or legitimacy consensus in the judicial process; (2) Even if such consensus can be formed in theory, from a practical point of view, reaching such a consensus requires high or even extremely high Social cost, and will increase the workload of the court, resulting in more social disputes that cannot be resolved, and the social function of justice is difficult to achieve. Under specific restrictions, the discussion mode agrees with the Consequentialism mode's emphasis on social discussion and policy discussion, but also believes that the two types of "extra legal discussion" should also self prove their influence on the judgment under the constraints of the pre interpretation conditions and the discussion rules - on this point, the discussion mode is more in favor of "weak Consequentialism", that is, in principle, judges should judge according to law, Only in specific difficult cases do judges need to consider the influence of social and policy discussions on the final judgment. Regarding the issue of whether consensus may be formed, the discussion model believes that the parties who choose to resolve disputes or "compete for interests" through legal procedures have already reached a certain "consensus", which corresponds to the "effectiveness" limit of the discussion process in the discussion model (see details below). For the cost issue, in addition to the above distinction between "justice" and "good", another way to reflect on Consequentialism is that it may require higher costs to form consensus, but in the long run, the costs of "reasoning" and "consensus" may be less than the costs of "coercion" and "coercion".

2.2 The limitation of the discussion mode on the discussion process

The shortcomings of the normative and outcome oriented models have prompted the discussion model to raise two questions: firstly, the normative oriented model emphasizes the "positive definition", believing that judgments should seek basis from existing legal systems, while the outcome oriented model emphasizes the "good definition", believing that judgments should have rationality and the function of implementing policies and solving social problems. Therefore, can we, on the basis of reflection, Propose a judgment approach that integrates the "good definition" on the basis of the "positive definition"? This is the first problem that the discussion model aims to solve. Secondly, the difficulty of difficult cases often lies in how judges should choose between conflicting and evidence-based arguments in the plural. Can the argumentation model propose a test standard for argumentation, helping judges screen in the plural and determine the influence of each argument on the final judgment? This is the second problem that the discussion model aims to solve.

Regarding the first question, the discussion model aims to limit the discussion process of judicial adjudication and propose a procedural approach to solve it; Regarding the second question, the discussion mode hopes to provide a test standard for resolving conflicts in discussions based on the above limitations, in order to determine the working procedures for adjudicating difficult cases. The discussion mode will first limit the discussion process of judicial decisions in three ways: "pre interpretation condition limit", "priority limit of discussion", and "validity limit of discussion". Overall, the "discussion process" here refers to the reasoning, refutation, and argumentation process in which various parties present various opinions to influence the final judgment in the process of adjudicating difficult cases; The "pre interpretation condition limitation" refers to the fact that the arguments proposed by all parties during the discussion process should roughly conform to the basic consensus formed by legal practice and legal research; The priority limitation of discussion "refers to the fact that specific types of discussions during the discussion process have significant influence or should be given priority due to the aforementioned basic consensus on the final outcome; The limitation of the validity of arguments refers to the fact that, on the basis of meeting the "pre interpretation condition limitation" and "priority limitation of arguments", the "acceptability" of various arguments depends on the degree to which they are argued and proven, and the argument or argument system with a higher degree of "acceptability" has a significant influence on the final judgment.

2.2.1 Pre interpretation conditions and limitations

The shortcomings of strong Consequentialism give two enlightenment to the discussion mode: first, we cannot give priority to policy and social discussion in judicial adjudication without reflection; Secondly, according to the "positive definition" emphasized by the discourse model, policy and social discourse should be subject to limitations that meet the "pre interpretation conditions" or undergo specific tests in order to have an impact on the final judgment.

So, what is' pre interpretive condition '? The perspective of hermeneutics holds that true differences can only exist within 'existing consensus'. This' existing consensus' is the pre interpretive condition for the mode of discourse and its rules: any interpretive community may have differences in the process of interpreting social practice, and the differences in plural discourse also arise from the interpretation of legal practice. The differences in plural discourse are based on two types of consensus: the "form of life" that is shared and recognized by each interpreter and practitioner, with shared language, shared history, and practical background as the foundation, and the interpretive sediment that has already undergone interpretation and become a meaningful background. In difficult cases, the first kind of consensus requires the legal person to share a general consensus on "what is the current effective law", "what is stipulated in the Civil code" and other issues, otherwise further discussion will not be carried out, and all parties will only talk pointlessly; The second type of consensus is a further consensus formed on the basis of the first type of consensus, which is an extension of the first type of consensus in specific legal application fields. For example, in special physical infringement cases, the academic community generally agrees that there is a causal relationship between the perpetrator and the damage result, but there is controversy over how to determine the causal relationship of the scope of responsibility.

The argumentative model agrees with the claim of hermeneutics, that the two types of consensus are the prelude to silence in difficult case judgments. For example, as far as the definition of the first kind of consensus is concerned, if a legal argument proposes that it is not necessary to refer to the Civil code to hear special constitutional tort cases, then such argument will be immediately excluded because it does not meet the conditions of the previous interpretation - unless it can prove itself, which is usually extremely difficult. The limitations imposed by the second type of consensus are more relative, originating from the accumulation of legal, social, and moral discussions. For example, a legal argument proposed that the victim's constitution itself should be presumed to be his "fault", and it should be judged that the liability of the perpetrator should be reduced. If the Value judgment of the doctrinal science is against the extension of this kind of application, the proposition of "application by analogy" will inevitably bear more burden of proof due to the limitations of the previous interpretation conditions. In a word, the "pre interpretation conditions" emphasize that the comments that have influence on the case judgment should at least "roughly conform" to the legal practice and social practice, which will exclude some very extreme strong Consequentialism propositions.

2.2.2  Limitation on the priority of discussion

The priority principle of discussion refers to the type of discussion that judges should prioritize in discussions that are not accepted by all parties, conflict with each other, and have been fully argued or proven. For example, in difficult cases, if legal arguments have priority, judges should prioritize legal arguments and give them greater or even full weight to determine the final judgment. The discussion mode emphasizes that in general, legal discussions should have higher priority, which is an inevitable requirement of formal rule of law and the basic positioning of "pre interpretation conditions" for judicial work. Moreover, based on the limitation of "priority of argument", the final judgment should include at least one legal argument after eliminating one or more arguments.

The priority of legal discourse carries a certain idealistic color. In the view of possible criticism, this priority seems to be unable to form a corresponding relationship with China's judicial thinking and current judicial practice. Relevant critics may claim that to determine the priority of discussion, "discussion on priority" must be carried out first: the long-standing "Consequentialism tendency" and policy thinking in China's judicial practice often lead judges to make different views and arrangements on the priority and weight of discussion in different cases according to political or social codes such as "light cases" and "heavy cases". For example, compared to special physical infringement cases, judges who hear environmental infringement cases clearly need to consider more policy discussions, and may not necessarily give legal discussions higher weight.

In the judgment concept of Consequentialism, "arguments about priority" may be divided into two categories according to their different degrees: first, the weak Consequentialism scheme, that is, there are plural conflicts and fully demonstrated legal arguments in difficult cases. Due to the mutual contradiction of legal arguments, policy arguments and social arguments need to be introduced as the final weights to decide cases; 2The strong Consequentialism scheme means that in any type of case, there is only one fully demonstrated legal argument, but since the legal argument ultimately leads to the undesirable result of the policy argument, the priority of the legal argument should be reduced and the policy argument should be given higher priority. The argumentation mode agrees with the first kind of Consequentialism, because conflicting legal argumentation will reduce its decisive power for the outcome of the case; As for the second kind of Consequentialism, the discussion mode is opposed in principle, because this idea does not provide argument or proof on "why policy discussion should take precedence over legal discussion". That is to say, even in discussions about priority, the principle of "maximum proof" should be adhered to as much as possible, and a "positive definition" of "priority" should be made as much as possible.

2.2.3 Limitation on the Validity of Arguments

The validity limitation of argumentation refers to the combination of argumentation and argumentation that is demonstrated and proven to the greatest extent, due to its high "acceptability", having a high impact on the final judgment. In judicial decisions, based on the distinction between the effectiveness and factual nature of language behavior structures, the actions of judges and parties can be divided into two categories: one is strategic behavior that is oriented towards achieving a successful goal, only focuses on factual results, and is reasonable; the other is argumentative behavior that emphasizes the acceptability of viewpoints through mutual understanding or attempting to make the other party understand themselves. At the second level, the issue of the effectiveness of judicial decisions arises, which is that the judgment itself should be a consensus formed through communication between subjects: discussions in judicial activities lead to mutual recognition between opposing parties, treating judicial decisions as normative and binding orders or guidelines, abandoning the narrow stance of only recognizing one's own interests, and reinterpreting relevant facts based on the effectiveness of inter subject recognition.

This means that even if the parties only choose legal means to achieve strategic goals, they have already accepted and recognized the effectiveness of judicial activities, so the parties must not "self object" to violate their previous "mutual recognition" with the judicial authorities - even if such recognition does not ensure a favorable outcome for them. Therefore, the discussion mode emphasizes not only seeking further consensus through discussion and communication based on consensus, but also ensuring the acceptance and respect of pre interpretation conditions, judicial authority, and judicial procedures by all parties through mandatory means. On this basis, the argumentative model believes that judicial activities are based on the procedural "positive definition" of the "good purpose" of all parties (including judges) under the protection of factual coercive force, seeking to be demonstrated, proven, or accepted by all parties to the greatest extent possible.

Therefore, despite the factual nature of judicial activities, they should still facilitate a shift from strategic behavior to understanding behavior. The discussion model divides judicial activities into three stages: firstly, based on mutual recognition, all parties attempt to achieve success in court through strategic claims; Secondly, entering legal proceedings expands the foundation of mutual recognition between both parties, but still adheres to their respective purposes; Finally, through the establishment and application of discussion rules, as well as the grasp, interpretation, and interpretation of various discussions, judges can achieve the following two goals in an ideal state: each party acknowledges the substantive validity of the other party's views, thus sacrificing their respective strategic objectives to achieve mutual understanding; Alternatively, because judicial decisions have the characteristic of seeking validity through argumentation, and because all parties involved in the judgment have already accepted the validity characteristics of the judicial decision, the judgment plan that has been demonstrated or proven to the greatest extent is also acceptable to all parties.

2.3 How to Resolve Conflicts between Debate Patterns

As mentioned above, the argumentative model aims to limit the judicial judgment as a deliberative process through limitations such as "pre interpretive conditions", "priority of argumentation", and "validity". Under these limitations, in order to propose the working procedures for adjudicating difficult cases, the discussion mode responds to the second question raised earlier: how can judges who comply with these limitations find the option to be demonstrated or proven to the greatest extent possible? This raises another question: What does it mean to be 'to the greatest extent possible to be argued or proven'? This is not only related to how judges should view conflicts in legal discussions, but also to different types of consistency testing standards.

2.3.1 How to view conflicts between legal discussions

The limitations imposed by both the argumentative and normative models on the judicial process require judges to prioritize legal argumentation in difficult cases. However, in some difficult cases, legal arguments may conflict with each other. Some normative models often resort to "coherence" to resolve conflicts between legal arguments. In the argument model, the degree of argumentation and proof of the argument (system) is also related to "coherence". Arguments generally have a systematic form, in which the mutually supportive relationship between arguments and argumentation systems, individual arguments and their arguments and proofs is called the "coherence" of the system. Just as an observer cannot see the overall image of a cube at the same time, it can be presented more accurately through different angles, and this macroscopic presentation depends on the precise description of each square. That is to say, improving the level of argumentation and proof in the argumentation system can enhance its coherence, and the effectiveness of the argumentation system requires maximum argumentation and proof for each argument that supports the argumentation system. In an ideal state, discussions or argumentation systems with high coherence have a higher degree of "argumentation and proof", and those who are convinced based on an understanding orientation are also more inclined to accept such discussions or argumentation systems.

Based on this principle, if the concept of integration is applied to difficult cases, the first thing to be discovered is the "integration of individual cases" within legal discourse, the "integration of legal systems" between individual legal discourse and legal systems, and the "integration of legal discourse and other discourse systems": (1) "integration of individual cases": that is, a argumentation system similar to the two types of legal discourse, using the same legal principle The legal value responds to each pending doctrinal challenge in a single case in a consistent manner from beginning to end; (2) "Integration of the legal system": that is to say, the principle and value in the integration of individual cases can not only respond to pending cases, but also rank the principles and values according to the overall legal system, and apply this rank Universal generalization to solve similar difficult cases; (3) According to the relationship between legal discourse and other discourse, there is also a "fusion of discourse systems", that is, the mutual support relationship between different types of discourse: for example, the mutual support relationship between legal discourse and moral discourse.

The argumentation model believes that in general, judges only need to achieve "case integration" in their argumentation of legal arguments in difficult cases. The reason is that the ideality of "integration of the legal system" is insufficient: for example, Dworkin's "best interpretation" approach - if every judge should "reconstruct" the legal system to obtain "better interpretation" when facing each difficult case, can different judges still maintain consistency or objectivity in principle when facing different cases? Or is there a possibility of integration between conflicting values? The creative work of each judge may bring greater differences and uncertainty, and may unravel the consensus that has accumulated through various interpretations. On the other hand, criticism in reality has become commonplace, mostly pointing to the fact that no human judge can handle such a high workload. Although the latter criticism can still be debated, the current situation of the heavy workload of Chinese courts and the differences in the roles of judges in different legal systems can provide practical evidence for such criticism. In addition, the "integration of the legal system" advocates that policies and social discussions in special physical infringement cases should give way to considerations of principles or rights, and the type of discussion that should be adopted depends on whether the rights and principles reflected in legal discussions can be better integrated into the overall legal practice - these two positions clearly contradict the strong policy consideration tendency in China's judicial practice, And it will lead to the problem of 'people being unable to verify the existence of rights themselves'.

2.3.2 How to resolve conflicts between legal discussions

So, how can the discussion model solve conflicts between legal discussions through the integration of the discussion system? Both the discussion mode and some normative orientation modes believe that conflicting legal discussions with "individual case coherence" should be tested through two steps: "pre interpretation test" and "coherence test".

In the pre interpretation test, a consensus can be reached between the argumentative model and the normative orientation model - the "pre interpretation test" of legal argumentation is to determine whether legal argumentation meets the limitations of doctrine. Legal discourse needs to find a basis in the current effective legal system, or cannot deviate too far from the general consensus of doctrinal theory. In cases of special constitution infringement, although there are "open loopholes" with missing rules, both equal legal arguments and fair legal arguments can pass the pre interpretation test. This is because the two have found corresponding concepts or values as support in the civil law system or tort law principles.

At this point, there is a disagreement between the discussion mode and some normative orientation modes regarding the "consistency test". Unlike the "constructive interpretation" of idealism, the argumentative model does not require the "coherence of the legal system" of pending legal arguments: for example, when fair arguments are difficult to explain "non fault tort liability", it does not naturally weaken its explanatory power in "general tort liability". In general, consistency testing does not require extensive homework and repeated consideration to align with the overall structure of the legal system. However, it still advocates that legal discourse should reflect a certain value or principle as much as possible, and be able to respond to the technical details of doctrinal issues one by one based on this value or principle, in order to achieve "case consistency".

However, if only satisfied with the "integration of individual cases", the judge still cannot determine which legal arguments should be chosen as the basis for the final decision. Because each of them is' integrated '. The discussion mode suggests that judges can explore the "coherence of the discussion system" and appropriately examine the compatibility between legal discussions and other discussions, exploring the possibility of judgments being supported by other discussions from different directions. Therefore, the proposal of "the integration of the discourse system" is to enhance the degree to which discourse is proven and argued, as well as to address the "hard and fast" contradictions between different types of discourse. Specifically, there are two common types of "integration of discourse systems" in judicial practice.

The first is the integration of "value goals". This type of coherence often occurs between discussions on "law morality", "morality policy", and "law policy". Taking the integration between "legal moral" discussions as an example: both are discussions oriented towards "norms understanding", and their value cores may overlap. In difficult cases, moral discourse can provide support and guidance for legal discourse. Secondly, in difficult cases, the widely accepted moral viewpoint in society can exclude some inappropriate legal arguments. For example, if the public generally opposes treating "special constitution" as an individual's moral fault, then the legal argument of "fault offset" for special constitution may not be adopted. In individual cases, a certain policy argument may involve specific moral arguments that are integrated with relevant legal arguments. Therefore, it can be concluded that the three arguments have mutually supportive systemic coherence.

Secondly, there is the coherence of "coordination and consistency". This type of integration emphasizes that there may be a coordinated relationship between the integration of "value goals" and the integration of "means and purposes" in judicial decisions through "second-order evidence". That is to say, there is a overlap between the rational reasoning of consequentialism and the formal reasoning of normalism, where the two can obtain the maximum common divisor. Therefore, the argumentative system that determines the judgment has the "coherence of the argumentative system" because of the common results of its reasoning. For example, if the policy and social argument think that the judgment that someone does not establish Right of self-defense will make people not inclined to Right of self-defense, which will lead to an increase in Social cost; Some legal arguments believe that, from the purpose of the Right of self-defense system, the defender in a critical state should not be excessively demanding; Moral arguments argue that in the face of criminal behavior of a malicious nature, victims should not be morally condemned for using potentially aggressive means to defend themselves. Then, in the face of the same case facts, the three types of argumentation have formed a coordinated relationship on "whether Right of self-defense is established". The practical argumentation system demonstrates the social effect of applying the Right of self-defense system, the normative argumentation system demonstrates the correct application conditions of the system, and the moral argumentation affirms the legitimate value of behavior.

The integration of the discourse system "is a reflection on the normative orientation model: when multiple conflicting legal arguments each have" individual case integration "within the legal system, judges should examine the" integration of the discourse system "between legal arguments and other arguments, and determine that a combination of arguments with a higher" integration of the discourse system "has a higher impact on case judgments. For example, when both legal discussion A and legal discussion B reach "individual case integration", judges should not be forced to continue judging whether A and B have "integration of the legal system"; On the contrary, in the presence of other types of argumentation C, judges should examine whether legal argumentations A and B can have a "coherent argumentation system" with other types of argumentation C. Therefore, assuming that A has better "integration of the discourse system" with C than B, the judge should adopt A as the reason for the judgment, as this judgment is supported by plural reasons, thus having higher "integration of the discourse system" than B.

2.3.3 How to resolve conflicts between other discussions

Judges who agree with the argumentative model and pursue the integration of the argumentative system will encounter another problem: in difficult cases where legal argumentation conflicts, there are plural conflicting arguments pointing to different legal argumentations. For example, in cases of special constitution infringement, there are policy discussions that "protect vulnerable groups" and are more inclined towards equal protection, as well as policy discussions that "resolve social conflicts" and are more inclined towards fair outcomes. At this point, the discussion mode needs to provide testing standards to handle conflicts between other discussions, so that the judge can judge the impact of conflicting other discussions on the final judgment.

The testing method of each argument is related to its orientation in speech acts, mainly including "pre interpretive testing" and "further testing". Firstly, moral discourse is different from legal discourse in that its "pre interpretation test" cannot be achieved by tracing the "formal origin". However, the "pre interpretation test" of moral discourse advocates that the moral discourse to be examined should truly exist in the moral concepts of some people, and that moral discourse should be related to the core issues of difficult cases. For example, the concept of "filial piety to parents" in the Yu Huan case possesses such authenticity and relevance. The "further test" of moral discourse is to weigh its impact on judgments after reflecting on moral concepts. This step is difficult because real moral arguments may not be proven or falsified through empirical evidence. However, judges can reflect appropriately on moral arguments - for example, in civil cases, by openly or covertly exchanging strategic positions between the parties, and then re examining their previously held moral claims; Alternatively, from the perspective of an objective third party, reflect on the acceptability of both parties' moral positions and eliminate any distortion of moral discourse caused by their strategic positions.

Secondly, unlike the "norm understanding" structure of legal and moral discourse, policy discourse is a rational proof of "purpose strategy". The pre interpretation test requires that the basis for policy discussions must truly exist in China's political practice, and that policy discussions raised in difficult cases must be relevant to the case. For example, policies to protect vulnerable groups are often considered to have a correlation with cases of infringement of special physical conditions, while abstract policies to improve people's living standards may be considered to have low correlation. The further test form for policy discussion is "proof", which may involve the following issues: (1) the matching of purpose means: whether the judicial judgment as a means can achieve policy objectives; (2) Economic rationality: what kind of adjudication scheme is more conducive to reducing Social cost or achieving optimal allocation of resources; (3) Policy Conflict and Flexibility: How to resolve a policy that conflicts with another policy; During the same historical period, there were both policies that political authorities hoped to adhere to for a long time and policies that could be flexibly adjusted with changes in the social and economic environment. How to resolve such conflicts; Wait a minute.

Finally, "social discussion" attempts to explain and analyze the principle mechanism, structural function or symbolic discourse of Social phenomenon, and describe the causal relationship on the factual level by combining Sociological theory and empirical analysis. In difficult cases, the criterion of the "pre interpretation test" of social argument lies in the accuracy of its description of Social phenomenon, that is, the theory should "conform as far as possible" to the object it hopes to present, and the social argument itself should provide clear criteria to determine whether it "conforms" to the problem; On the other hand, the pre interpretation test also requires that if the purpose of social discourse is to achieve policy discourse, the correlation between social discourse and policy discourse needs to be judged. For example, explain how the "Social cost" argument will achieve the policy purpose of preventing infringement risk. To further test social discourse, it is necessary to judge (1) the accuracy of social discourse predictions when they are oriented towards "prediction" - such as distinguishing between correlation and causality; (2) If plural social discourse explains the same issue, it is necessary to judge the degree of explanatory power. For example, social discourse can predict the different outcomes and probabilities that multiple judgments may bring based on a thorough description of past judicial tendencies, refine the complex sociological logic of judicial practice, and ultimately explain the interconnected operational principles between justice, society, and politics.

After the analysis and discussion in the previous text, on the one hand, the argumentation mode limits the process of argumentation by "pre interpretation conditions", "priority of argumentation", and "validity". On the other hand, by introducing the "pre interpretation test", "consistency test", and "further test" standards of plural conflicting argumentation, the working procedure of judges in adjudicating difficult cases under the argumentation mode has been basically outlined. Judges who agree with the mode of argumentation to solve difficult cases will roughly follow the "working procedure of argumentation" to judge the case. They will test, exclude, and argue various arguments that exist in difficult cases, in order to obtain a discourse or discourse system that can affect the final judgment. The working procedure for discussion consists of the following five points:

 1. On the basis of respecting judicial authority, communication between all parties should be carried out in a state of no coercion as much as possible.

 2. Proposing a discussion requires providing arguments or proof; The rebuttal to the argument also requires argumentation or proof.

 3. According to the "pre interpretation conditions" of judicial activities, legal arguments have priority over other arguments, unless such priority is sufficient to be refuted by fully demonstrated or proven objections;

 4. Be able to be refuted by fully argued or proven objections;

Except for the "pre interpretation conditions" that have been precipitated as necessary consensus for mutual understanding in legal practice, all discussions are revocable in principle. But the judgment of the case must include at least one legal argument.

 5. On the basis of meeting the pre interpretation conditions and the principle of priority, the impact of the discussion on the final judgment shall be determined in the following order:

  (1) Agreed and accepted by all parties without objection; Or, although not jointly recognized or accepted, arguments and proofs can be obtained to the greatest extent according to the testing standards.

  (2) Arguments, arguments, or proofs that are coherent with those that meet the conditions of (1);

  (3) Arguments that are difficult or impossible to argue or prove, or arguments that can be argued or disproved.

3Working Procedure Judgment in a Discussion Mode

Specific Demonstration of Special Physical Fitness Infringement Cases

3.1 Judgment of the 'Bee Case' through a deliberative working procedure

Next, it is advisable to introduce the typical "bee case" of special constitution infringement cases to explore the specific application of discussion modes and rules. The case of the Bee case is that the victim was working in their own farmland, 200 meters away from the victim's farmland. The perpetrator's neighbor kept a group of bees in a temporary beekeeping box, and the bees flew out and stung the victim; The victim was allergic, died of Anaphylaxis, and did not know that he had a special constitution before his life; The perpetrator is unaware that the victim has a special constitution and has installed necessary protective measures around the beehive to prevent bees from escaping.

3.1.1 The traditional mode of judgment approach

According to the principle of liability fixation in China's tort law, the principle of Strict liability applies to cases of tort liability caused by breeding animals. Therefore, on the premise that there is sufficient evidence to prove the causal relationship, damage facts, and other elements, regardless of whether the perpetrator is at fault, they should bear tort liability. However, there are still controversies and difficulties in this case: under the premise of the establishment of the tortious liability of the perpetrator, the victim's special physical condition actually expanded the damage result (the result of normal people being stung by bees not causing death). At this time, should the perpetrator's compensation liability be reduced due to this "expansion of damage".

As mentioned earlier, there may be disagreements within the normative orientation model regarding this issue. The legal discourse based on "equality" believes that the strength of legal protection of citizens' right to life and health should be consistent, and the right to life and life of ordinary citizens and citizens with special physical conditions should also be equally protected. On this premise, assuming that the victim in this case has no special constitution and no fault, the judge should award full compensation to the perpetrator. If the victim has special constitution and no fault, the judge should also award full compensation to the perpetrator. The legal argument based on "fairness" holds that the primary principle of liability distribution in tort law is fair balance, and it is obviously unfair to let innocent perpetrators bear a huge amount of compensation liability. In this case, the victim's special constitution led to the expansion of the damage, and the perpetrator had difficulty foreseeing the extremely rare victim's constitution of bee venom allergy. Therefore, the perpetrator's responsibility should be appropriately reduced.

Regarding this issue, the outcome oriented model will also raise various conflicting discussions. For example, (1) policy discussion, that is, judging the perpetrators to bear too much responsibility will hit the enthusiasm of local bee farmers, increase Social cost, and damage economic development; On the contrary, another view may argue that protecting vulnerable groups is also a policy that judicial authorities should consider, and victims and their families who die due to special physical conditions belong to the "vulnerable group"; (2) Moral discourse, that is, there are also two different moral positions in social public opinion: for example, the offender's position states that "a person is only responsible for the consequences of their own wrongful behavior", and the victim's position states that "a person should be responsible for all the consequences caused by their own behavior". (3) Social discourse refers to exploring how different judgments will have different social effects from the perspective of "description prediction". For example, a judgment that the perpetrator bears full responsibility will undermine harmonious interpersonal relationships in rural areas, and a judgment that does not fully compensate will lead the victim to resort to private remedies and even develop a tendency towards revenge.