[author]Zhang Jie

[content]

The Application Model and Culture Logic of Qingli in Criminal Trails

—— Taking 749 Criminal Verdicts as an Example

Zhang Jie

Associate Professor, Lanzhou University Law School

Abstract：The characteristic of non-reality makes Qingli separated from the case present the state of “empty box”. Only after the triggering of case facts and reasoning needs, Qingli can be concretized through inductive reasoning. Through the empirical study of criminal judgments, the concretized Qingli is transformed into empirical rules and normative basis, and as the role of major premises it forms the empirical function of evaluating facts and evidence in conventional cases and the normative function of evaluating substantial and procedural issues in special cases. As inductive reasoning cannot achieve complete induction, the probability of Qingli cannot exclude reasonable doubt, and then reduce the credibility of criminal judgment and cause conflicts between Qing and law. The reason is that the characteristic of the unity of nature and man in Chinese culture is different from the dichotomy of subject and object in western culture, and forms the cultural characteristic that emphasizes empathy in Chinese legal system. To effectively resolve conflicts between Qing and law, judges should discover the particularity of individual cases by separating roles under the guidance of empathy and realize justice of individual cases under the framework of formal rule of law in a public way that could be generally justified.

Keyword：Qingli; Criminal Trials; Experience; Normativity; Empathy;

For a long time, Qingli is the focus of traditional Chinese legal culture. Shen Jiaben had an insightful exposition: "the new study is often deduced from the old school, the more events, the more dense jurisprudence, but the main thing is always 'Qingli'. Regardless of the old school, the new school, can not give up Qingli and other law, the noble integration and coherent." To this day, Qingli is still an important criterion for Chinese people to evaluate things, and the Party Central Committee with Xi Jinping as the core also has systematic deployment and arrangement. Xi Jinping has pointed out that it is necessary to "adhere to the law as the basis, convince people with reason, and feel for them, and strive to achieve the best legal, political, and social effects. "In 2018, the Supreme People's Court repeatedly emphasised the role of Qingli in adjudicatory reasoning in its Guiding Opinions on Strengthening and Standardising Interpretation of Judgement Documents. In 2021, the Supreme People's Court emphasised once again that the interpretation of adjudication documents and reasoning should "actively explain Qingli", and "continuously improve the legal, social and Qingli recognition of judicial decisions". The above discussion highlights the importance of the Qingli at the same time also reflects the Qingli in the judicial trial has a multi-faceted. So, what is Qingli? In this regard, the academic community has had a lot of discussion. Although there are differences in these discussions, but the non-substantiality and normativity of Qingli are affirmed, and it is also these two basic characteristics of the academic community for the research direction of Qingli. On the one hand, because as a "feeling" Qingli has different from the legal norms of non-substantiality, so for a long time, academics are obsessed with exploring the specific connotation of Qingli. On the other hand, because of the Qing and law as the trial basis of normativity, therefore, a large number of discussions around the relationship between love and law. At the same time, due to the ancient and modern criminal trials are subject to the harsh restrictions of statutory law, so the context of Qingli research basically focuses on civil trials. However, the Qing and law problems highlighted in real life cases such as "Yu Huan Case" and "Zhao Chunhua Case" show that criminal trials also need to deal with Qingli issues.

In view of this, this paper chooses to criminal trial as the background, from the referee instrument on the "Qingli" the use of symbols to start, through empirical analysis, from the perspective of the function of the reverse Qingli contouring the use of the mode, in order to explore the deeper cultural logic behind the Qingli and the path of perfection.

1 An Empirical Perspective: The Current Situation of Qingli in Criminal Trials

As of 1 September 2021, we searched the China Judgment Documents Online with the keyword "Qingli", and finally obtained 749 valid samples, i.e., 749 judgment documents with the symbol of "Qingli" in 10 provincial administrative regions. Through setting up a series of indicators, assigning values, statistics and analyses, the statistically significant information shown in these judgments is as follows:

Without distinguishing the subject of use, the functions of Qingli in criminal trials fall into seven main categories, which, in order of frequency, are: evaluating facts (48.33 %), evaluating evidence (40.19 %), evaluating sentencing (3.74 %), reinforcing reasoning (3.07 %), evaluating the original judgement (1.74 %), evaluating the claim (1.47 %) and evaluating the procedure (1.47 %). For these seven types of functions, if the classification criterion is whether or not they play the role of a normative basis, they can be divided into two categories: the first category is normativity (8.42 %), which includes evaluating claims, evaluating procedures, evaluating sentences, and evaluating the original judgement. Users use Qingli as a normative basis for evaluating a procedural or substantive issue, and these functions actually play a normative role similar to that of the law. The second category is the Experience function (91.58%), which includes evaluating evidence, evaluating facts, and reinforcing reasoning. In performing these functions, users did not use emotional reasoning as a normative basis for evaluating procedural or substantive issues, but rather used Qingli to strengthen the persuasive power of a certain part of the process, such as the strength of the evidence and the magnitude of the probative power, the reliability of the legal facts, and the adjudication of the reasoning, and so on. These functions are basically close to the rules of thumb, so they are collectively referred to as Experience functions.

If we further distinguish between the use of the subject will find that the subject of the use of Qingli in order of frequency: the court (65.42%), the defence (27.10%), the parties (4.67%), the prosecutor's office (1.47%), other (1.34%). This shows that the court and the defence are the most important subjects in terms of the use of Qingli at this level of the adjudication documents. From this, we take the court and the defender as the main body to classify the function again will find: the court applies Qingli mainly to evaluate the evidence (52.04%), evaluate the fact (41.46%), evaluate the claim (2.04%); the defender applies Qingli mainly to evaluate the fact (62.07%), evaluate the evidence (17.73%), evaluate the sentence (9.85%). It can be seen that Qingli mainly plays the empirical function of "evaluating evidence" and "evaluating facts" in criminal trials. The probability of the court and the defence applying Qingli to evaluate evidence and facts is 93.5 % and 79.8 %, respectively. This shows that "people's judgement of things is inseparable from rules of thumb, and in litigation, the parties' proof and the judge's factual findings are likewise inseparable from rules of thumb". This also reflects that in criminal trials, judges do not simply replace the law with Qingli, and that the public's concern about "substituting Qingli for the law" is not the norm in the application of Qingli.

Although Qingli in the criminal trial mainly plays the Experience function, but we still can't ignore the normativity function of Qingli. If from the use of the subject of the normativity and empirical function of the use of preference on the observation, we will find that the court is most inclined to use the empirical function, while the defence, the parties to the use of empirical function of the preference for the use of the gradual decrease. This judgement can be reflected by Figure 1. In the assignment of the functional variables in Figure 1, where 1 is the Experience function and 0 is the normativity function, the use of parties is classified into five different types. As can be seen from Figure 1, courts are most likely to use the Experience function, with a likelihood of use of close to 90%, while advocates are close to 80% likely to use the Experience function. The former is approximately 10 % more likely to use the Experience function than the latter. The likelihood of the parties alone using the Experience function is even further reduced. Correspondingly, the probability of using the normativity function is lowest for courts and gradually increases for advocates and parties. This feature is largely in line with common sense.

If we further examine whether the arguments of the different users based on Qingli are favourable to the defendant, we find that the court applies Qingli to arrive at an argument that is unfavourable to the defendant in 86.94% of cases and favourable to the defendant in 13.06% of cases, while the advocate applies Qingli to arrive at an argument that is unfavourable to the defendant in 2.96% of cases and favourable to the defendant in 97.04% of cases. The distribution of scatter points in Figure 2 clearly reflects this situation (each scatter point in Figure 2 represents a sample). Of course, Qingli-based arguments are often related to only one part of the conviction and sentence, and the actual sentence handed down by the court is the most crucial to the parties concerned. Therefore, we have added the indicator of "actual sentence". Through analysis, we found that the defence's arguments based on Qingli did not have a significant impact on the actual sentence ultimately imposed by the court, and the effectiveness of the defence was questionable.

Figure 2 is a depiction of the impact of the arguments made by different users of Qingli on the actual sentence imposed by the court. The left panel in Figure 2 shows the strength of the actual sentence imposed by the court when the different users use Qingli to argue against the defendant (i.e., "favourable or not = 0"), while the right panel shows the strength of the actual sentence imposed by the court when the argument is in favour of the defendant (i.e., "favourable or not = 1"). The graph on the right shows the actual sentence strength when the argument is in favour of the defendant (i.e. "favourable or not = 1"). Comparing the left and right graphs, it can be seen that when the court uses Qingli to argue in the defendant's favour, the actual sentencing strength of individual cases ranges from 4 to 5, which is less severe than when the court uses Qingli to argue against the defendant (a little over 6), with a difference of more than one level. It is consistent with our common-sense understanding that when the legal argument is favourable to the defendant, the actual sentence becomes correspondingly lighter. However, such a relationship is not significant when the party using it is the defence. When the defence uses Qingli to argue against the defendant, the actual sentence imposed by the court is slightly below level 6, which is only about 0.3 levels higher than the actual sentence imposed when the defence uses Qingli to argue in the defendant's favour (also slightly below level 6). This shows that the impact of the defence's Qingli-based defence on the court's actual sentence was significantly weaker than the court's Qingli-based argument. Even in the case of the same argument in favour of the defendant, when the subject of the Qingli was the defence, the actual strength of the sentence imposed by the court (just below level 6) was heavier than in the case where the court was the party using the Qingli (the actual strength of the sentence was between level 4 and 5), with a difference of about one level.

In summary, the use of Qingli in criminal trials is quite complex. From a functional point of view alone, we can divide the types of use into two broad categories and seven subcategories. If we further consider the subject of use, the specific use of Qingli will become even more complex. Therefore, it is indeed a very tricky thing for us to define Qingli at an abstract level. It is worth noting that Hiroaki Terada has cleverly skirted around the definition of Qingli with an analogy, arguing that the specific content of Qingli, as a normative element on which traditional Chinese judgements are based, must be attributed to the individual case, "or that a single judgement fills up such an empty box as Qingli". Although Hiroaki Terada's concern remains the normativity of Qingli, the metaphor of the "empty box" accurately reflects the non-substantiality of Qingli, and shows that we can only clarify the specific content of Qingli by focusing on individual cases.

2 From induction to deduction: the mode of application of Qingli behind the data

Based on this important information presented in the sample, we can summarise the following patterns of Qingli's use in criminal trials:

For the court, due to the limitation of the principle of legality of crime and punishment, Qingli mainly plays the empirical function of evaluating evidence and evaluating facts in criminal trials, and its role is basically equivalent to that of a rule of thumb. Since evidence is the basis for determining legal facts, and legal facts are the prerequisite for conviction and sentencing, for the court, the two must not be neglected, thus forming a situation in which the two sub-functions are equal. Specifically, "when a judge applies rules of thumb to a specific case and needs to make a decision, he will then use deductive reasoning to reach a conclusion, and in this way the judge will be able to obtain a judgement with a high degree of certainty". The judge uses Qingli to evaluate the evidence and facts, which is a process of deductive reasoning. Qingli acts as the major premise in this process, and the judge relies on this major premise to make a judgement on the evidence and facts in the individual case. Evidence and facts in the case in line with the general logic of the Qingli will constitute the deductive reasoning of the small premise, and ultimately can be concluded that "in line with the Qingli" conclusion, and vice versa, "does not meet the Qingli" conclusion. However, unlike legal discovery with a more certain range of legal sources, also different from the major premise of the legal norms have a high degree of certainty, the specific connotation of Qingli must be clear in individual cases. Thus, there is in fact an implicit prior inductive reasoning before deductive reasoning with Qingli. The facts of the case as well as the reasoning need to trigger this implied process, i.e., the judge needs to visualise the original non-substantial Qingli through inductive reasoning, and then carry out the subsequent deductive reasoning.

Take the case of (2020) Yu Criminal Final No. 74 as an example. The defence argued that the defendant's suitcase was not found to contain drugs after multiple inspections when it was mailed, so the possibility that the suitcase had been switched after it was mailed could not be ruled out. However, the court held that "the seized drugs are located in the luggage box wall fabric within the whole piece of white foam and the bottom of the box, need to use a screwdriver to open the luggage to be found, Zhongtong Dongfeng Business Department staff routine inspection did not find Wan Fang Ding consignment of luggage hidden drugs in Qingli." The court's judgement seems simple, but it implies a complex process from inductive reasoning to deductive reasoning, which can be disassembled as follows: the first step is that the process of Qingli's materialisation is triggered. In the face of the defence put forward by the defence and the courier staff did not find the objective facts of the drugs in the sandwich, the court needs to think about is why the courier staff did not find drugs. This is the case of facts and reasoning triggered by the beginning of Qingli figurative, that is, Qingli this "empty box" began to be filled in the process. The second step is to arrive at the specific connotation of Qingli through inductive reasoning. The facts and reasoning of the case need to indicate the direction and scope of the judge's inductive reasoning, the judge thus inductively a Qingli that he believes to be universal: "express staff in the routine inspection will not use tools to open the suitcase for inspection." The third step is to use the inductive Qingli as the major premise for deductive reasoning, and this reasoning process can be described as follows: the major premise is that "courier staff do not use tools to open suitcases for inspection during routine inspections", and the minor premise is that "staff of the Zhongtong Dongfeng Sales Department did not use a screwdriver during the routine inspection of the suitcases of Wanfang Ting. The minor premise is that "the staff of the Dongfeng Business Department of China Communications did not use a screwdriver to open the suitcase for inspection during the routine inspection of Wan Fang Ding's suitcase", and the conclusion is that "the staff of the Dongfeng Business Department of China Communications did not find that there were drugs hidden in the suitcase in accordance with Qingli". It can be seen that the use of Qingli in the evaluation of facts and evidence, the conclusion obtained is by no means a simple judgement of "conformity or non-conformity with reason", on the contrary, it is a very complex process.

In this mode of Qingli application, the defence side also follows the above steps. For example, the defence in case (2019) Yu 04 Criminal Final 112 suggested that the defendant did not realise that his unlicensed sand mining was a crime because the regulator had carried out several safety inspections but had not imposed administrative penalties, and that the perception was Qingli. This defence presented a process from inductive to deductive reasoning. The defence first triggers an inductive reasoning based on the facts of the case and the need for deduction, through which a major premise is summarised. The major premise of this case can be expressed as "without being punished, one will not realise that the act is unlawful". Based on this major premise, the defence carried out a deductive reasoning, the minor premise is "the regulator conducted several safety inspections but did not punish the defendant", and the conclusion is "the defendant did not realise that the act was illegal in the Qingli". It can be seen that the functioning of Qingli's Experience is identical in the specific reasoning process carried out by the judge and the defence.

This situation suggests that, formally, the defence's use of Qingli in conventional cases is likewise a rational reasoning process. The court and the defence form a pattern of corresponding and opposing determinations around evidence and facts. The principle of legality is the key to this pattern. In a criminal trial, since the court must base its decision on legal facts and in strict accordance with the provisions of the law, the defender cannot rely solely on the normativity of Qingli to reach a decision in favour of the client on the premise that the basis of the decision cannot be changed. The parties have not been professionally trained, so it is based on natural instinct to use the normativity of Qingli. But for professional lawyers, they know that in order to achieve an effective defence, must weaken the court's reasoning, and weaken the object can only be evidence and legal facts. Such a situation also precisely shows that "cognitive activity can not be simply approximate the relationship between the subject and object, legal facts are generated in the litigation activity between the subject of the behaviour and interaction, is the litigation cognitive subject of the joint construction of the product, constructive interpretation of the formation of legal facts of the mechanism".

The normativity function of Qingli is rare but not negligible in conventional cases. For example, in the case of (2019) E Criminal Shen 188, the court held that the trial court "imposed a sentence that was reasonable", which was the court's evaluation of the sentence by considering Qingli as a normative basis. Of course, in the legal norms-oriented criminal trial field, the normativity function of Qingli is not common in the adjudication documents. Courts generally use the normativity function of Qingli in situations where the principle of legality is less binding, such as evaluating the judgement of the court of first instance, or a certain claim of the parties (especially a civil claim in a civil lawsuit accompanying a criminal offence). In general, the function of Qingli as a normative basis is greatly compressed in regular cases and is more often manifested in the litigation activities of subjects of litigation other than the courts, due to the fact that the principle of legality of the offence and the punishment is less binding on these subjects.

But the field dominated by such a legal norm is not immutable. "With the advent of the Internet age, society at large has more convenient and inexpensive channels to express their claims to rights and concerns about cases." When other types of power into the criminal trial, the power structure in this field will change, at this time, the normativity function of Qingli will come to the fore and lead to Qingli and law difficulties. In recent years, many hot cases are the embodiment of this problem. For example, after the "Zhao Chunhua case", some people think: "as long as the facts are found, the applicable law is correct, it is right to speak some Qingli."

Qingli plays a normativity function in evaluating sentencing. In the "Kunshan anti-killing case", for the act of anti-killing, there is public opinion evaluation: "this event from the overall process is the evil people hacking, by the good people rise up to fight back to death. Is a universal value perspective very Qingli moral justifiable defence." For "Zhang Koukou case", the netizen's comments are still inseparable from Qingli: "with this most primitive homoeopathic revenge (i.e., an eye for an eye, a tooth for a tooth) way to avenge his mother, although it violates the law, but it is also Qingli." It should be noted that Qingli in the "Kunshan anti-killing case" and "Zhang Koukou case" directly act as a standard for judging the legality of the act and the severity of the crime. This is different from the four normativity functions embodied in the conventional adjudication documents, which can be regarded as the strongest normativity function of Qingli, which is often criticised as the function of "substituting the law with emotion".

These public opinion Qingli although in nature and Experience function is different, but its application process is actually the same from inductive reasoning to deductive reasoning process. Take the public opinion on the "Kunshan anti-killing case" as an example. The facts and reasoning of the case need to trigger the process of Qingli visualisation by the commentators. Through induction, the commentator arrives at a Qingli that he believes to be universal: "The counterattack against the hacking behaviour of an evil person that leads to death belongs to self-defence". Taking this as the major premise, the minor premise of deductive reasoning is "Yu Haiming's act was a counterattack against Liu Hailong's hacking", and the conclusion is "Yu Haiming's act was self-defence". Although the commentator may not have the self-awareness of reasoning, ordinary people need to go through such a complex thinking process when they use Qingli to make normativity evaluation. It can be seen that the process of the action of Qingli's Experience function and normativity function is consistent in its internal structure. The difference between the two is that Qingli derived through inductive reasoning does not have normativity in the empirical function, but is only a description of common sense of experience, and thus the deductive reasoning that takes it as the major premise is embedded in the external evidence of the final triad. On the contrary, the Qingli summarised in the normativity function has a normative colouring of value judgement, and the whole process of the normativity function works not only independently of the final triadic reasoning of the case, but also in opposition to the decision of the case itself.

From this, we can use Figure 3 to describe the pattern of the use of Qingli in criminal trials.

Qingli, divorced from the individual case, is only an "empty box" whose nature and content cannot be determined. Triggered by the facts of the case and the need for reasoning, Qingli begins the process of materialisation. Users through inductive reasoning to come up with a real connotation of Qingli, and take it as the premise to carry out deductive reasoning. In conventional cases, Qingli is mainly expressed as a rule of thumb, and the user evaluates the facts and evidence based on Qingli, thus forming an opposing and corresponding fact-finding model between the court and the defence, and the whole field is dominated by legal norms, and the normativity of Qingli is restricted. When the binding force of the principle of the law of crime and punishment is weakened, and the subject of the use of Qingli is changed to other litigation subjects or social subjects other than judges, the possibility of Qingli being transformed into a normative basis is greatly increased. When the user evaluates substantive and procedural issues through Qingli, an informal evaluation different from the legal evaluation is formed. When the tension between this informal evaluation and legal evaluation reaches a point that is difficult to bridge, the special case of Qing and law conflict is formed. From the conventional case to the special case, Qingli's Experience is gradually weakened and normativity is gradually strengthened.

3 Contingent Qingli: The Main Problems of Qingli's Usage Patterns

At this point in the discussion, some problems have actually been revealed. "Express staff will not use tools to open the suitcase for inspection during routine checking", "Without being punished, one will not realise that the act is illegal", "Counterattacks against vicious hacking that kills belong to legitimate self-defence "How are these Qingli as premises arrived at by inductive reasoning? Does the conclusion of Qingli rely on personal life experience, or the general habits of the industry, or the normal physiological reactions of natural persons? In real life, is the opposite necessarily not true?

These doubts are not without merit. For example, in the case of (2020) E11 criminal final 147, the trial court held that "the interest rate at 5% per month is usurious, and the interest incurred far exceeds the amount of the legal default, therefore, Hong Xiangfeng put forward is Zhang  autonomy to write down the note of the defence is obviously Qingli unreasonable." In this case, the court conducted deductive reasoning based on Qingli: the major premise is "it is impossible for the debtor to agree to interest in excess of the statutory default amount"; the minor premise is "Hong Xiangfeng proposed that it was Zhang who wrote the note on his own initiative"; the conclusion was "Hong Xiangfeng's defence is not Qingli". So, the premise in this case is always reliable? In other words, in real life, is it certain that there will not be a situation in which the debtor agrees to interest in excess of the statutory liquidated damages? "But some people just don't believe in it and have to agree to late interest and liquidated damages in excess of 24 % per annum. Enterprises in urgent need of borrowing money are forced by the situation to agree to any conditions and have signed and sealed the contract." Such news is not uncommon, and reflects the unreliability of the premise that "the debtor could not have agreed to interest in excess of the statutory default rate" in this case. It follows that "a judge's Qingli zone is likely to expand with experience as he becomes more knowledgeable and realistic about the judicial process." Conversely, however, it is possible that the Qingli on which a green judge bases his judgement may not be universal because it is inexperienced and divorced from reality.

The fundamental reason for this is the nature of inductive reasoning itself. If Qingli is divorced from the specific case, then it is just an "empty box". Only after the facts of the case and the reasoning needs of the trigger, the judge can through inductive reasoning to give the Qingli specific connotation, and to carry out the subsequent deductive reasoning. This process is not only the process of transforming the connotation of Qingli from non-actual to figurative, but also the process of reasoning from the particular to the general and back to the particular. However, as a method of reasoning from the particular to the general, inductive reasoning has a natural flaw. Complete induction can guarantee the correctness of the conclusion of reasoning, "but incomplete induction does not necessarily lead to the correct conclusion, and certainly may lead to the correct conclusion, so it can only be a kind of contingent reasoning." As real-life individuals, it is almost impossible for natural persons to achieve complete induction, and the conclusion reached by incomplete induction can only be a contingent conclusion that cannot rule out "black swan events". Thus, "the danger of Qingli inference lies in the fact that the empirical knowledge that serves as the major premise has a probabilistic character, and the results deduced from it thus have a probabilistic property".

Since Qingli is a major premise with a contingent nature, the judge's evaluation of the evidence and facts based on Qingli cannot be completely beyond a reasonable doubt. Article 55 of the Criminal Procedure Law of the People's Republic of China (hereinafter referred to as the Criminal Procedure Law) stipulates the standard of proof as follows: "Evidence is true and sufficient, and shall meet the following conditions: (1) the facts of conviction and punishment are proved by evidence; (2) the evidence on which the case is based has been verified by legal procedures; (3) the evidence in the whole case is comprehensive, and the facts found have been ruled out beyond reasonable doubt. reasonable doubt." So, when the evidence is not true and sufficient, the facts found cannot be beyond reasonable doubt, how should the court deal with it? Although China has not explicitly stipulated the principle of accepting guilt beyond reasonable doubt, the spirit of accepting guilt beyond reasonable doubt has in fact been embodied in the relevant laws and regulations. For example, Article 200 of the Criminal Procedure Law stipulates: "After the defendant's final statement, the presiding judge shall adjourn the trial, and the collegial court shall deliberate and, in accordance with the facts, evidence and relevant legal provisions that have been ascertained, make the following judgements:......  Where there is insufficient evidence to find the defendant guilty of the charge, a judgement shall be made that there is insufficient evidence, and the charge shall be dismissed. , shall render a judgement of acquittal in which the evidence is insufficient and the alleged offence cannot be established." According to the law, since Qingli, which is the major premise, cannot exclude reasonable doubt, the court should make a judgement of acquittal in accordance with the principle of accepting guilt on the basis of suspicion. However, the data from the empirical research in this paper show that the conclusions reached by the court using Qingli are often unfavourable to the parties, and this proportion in the sample is as high as 86.94%, while the final verdict of innocence made by the court accounts for only 5.6%. This also confirms the scholar's judgement that "the institutional result of judges consciously using Qingli inference is bound to be a significant reduction in the proportion of 'doubtful acquittals' applied."

It can be seen that Qingli as the premise has the contingency makes deductive reasoning in judicial practice can not rule out reasonable doubt, which exists with the principle of doubtful acquittal of the possibility of conflict. Of course, this does not mean that Qingli must be removed from the process of legal reasoning. This is because the judicial decision is a complex process of shuttling back and forth between the legal norms and legal facts, the referee documents present the trinitarian only completed the internal testimony, and "the true reliability depends not only on the validity of the individual trinitarian, but also depends on the authenticity of the premise". This is the problem of external corroboration, which cannot be separated from the value judgement of the judge. In addition, "despite the fact that criminal procedure requires the law of offences and penalties, the generality and generality of the criminal law make it quite ambiguous with regard to the facts of various specific and particular cases, which leaves a wide space for Qingli justice". Since Qingli is bound to enter into the process of legal reasoning, the key to avoiding its conflict with the standard of proof in criminal proceedings and the principle of the benefit of the doubt lies in reducing the contingency of Qingli.

In this regard, as mentioned above, the contingency of Qingli is unavoidable unless full induction can be achieved. In this case, reducing the contingency of Qingli by showing the public the process of legal reasoning is a feasible and necessary requirement. This is because "law, like religion, is derived from public ceremonies, and once such ceremonies are terminated, the law loses its vitality". What exactly is the Qingli on which the judge's reasoning is based? How did the judge arrive at the Qingli? What makes this Qingli reliable beyond reasonable doubt? If the judge is able to explain these questions through adequate reasoning, the contingency of the Qingli can be reduced on the basis of popular approval. Thus, the complex process of reasoning embedded in the mode of application of Qingli must be subjected to public scrutiny, which is the process by which the judge further elevates "private conscience" to "public conscience" and by which the reasoning achieves axiomatic validation.

In addition, the judge using Qingli reasoning is the process of the judge's inner conviction, according to our "case facts" "decision reasoning" "referee basis" to the referee documents. According to our "facts of the case" "reasoning" "decision basis" "referee text" structure division, this reasoning process belongs to the referee reasoning of course part. At the same time, the legal fact is the product of the interaction of different litigants in the joint construction. However, according to the situation presented in Figure 2, that is, the defence use of Qingli reasoning in favour of the defendant will lead to the court's actual sentence is heavier than the court's use of Qingli reasoning in favour of the defendant's actual sentence, we can see that the defence based on Qingli's defence is ineffective. Why, then, was the defence's Qingli-based defence rejected? All of the above need to be fully explained and respond to the judge, which puts forward a high reasoning requirements of the judge.

However, we can hardly see this ideal mode of reasoning in the judge's documents. For a long time, our country's referee documents reasoning because of its "minimalist style" has been criticised, especially prominent manifestation of the "judgement does not reason" phenomenon. Since the end of the last century, the reform of the reasoning of the adjudication documents has been emphasised, but on the whole, the effect of the reform is not obvious. Such a style is also reflected in the use of Qingli, i.e., the judge often describes the evidence and facts and then comes to the conclusion that it is "in line with or not in line with the Qingli". This minimalist style of adjudication cuts out the complex reasoning process of the Qingli mode of application, and not only fails to reduce the contingency of Qingli as a major premise, but also lacks a response to the defence's arguments based on Qingli. This greatly reduces the persuasive power of the decision, thus making the disadvantages of the Qingli application model further magnified. "Qingli inference that lacks reasoning or avoids reasoning not only fails to build a justifiable foundation for the factual findings of the case, but also poses a judicial risk for the factual findings."

4 The division and combination of subject and object: the cultural logic of the mode of application of Qingli

In further thinking about the conflict between Qingli and the criminal justice system, we will find that, whether it is the standard of proof beyond reasonable doubt, the principle of acquittal, or the principle of the law of criminal justice, which fundamentally restricts the normativity of Qingli, the design of these systems to constrain the power of the judge was born in the process of modernisation of the Western legal system. At the same time, attacks on the negative role of Qingli are often directed at traditional Chinese justice. Does this mean that traditional Chinese justice is an arbitrary mode of adjudication?

The whole process of modernisation of the Western legal system is a process in which judicial dynamism is gradually dispelled by modern natural science and evolves into a formal rule of law centred on the pursuit of calculability. Therefore, the fundamental characteristic of the Western capitalist legal system can be summarised as formal rationality. This pursuit of formal rationality of the law is the absolute rejection of morality, ethics and other irrational content as the standard of adjudication, and these contents are precisely reflected in the traditional Chinese judicial adjudication. "It is also precisely because traditional China is on the outside of the laws and regulations, thus giving an impression of transcending the laws and regulations, and adjudicating with the help of Qingli or axioms, that Weber made the judgement of 'Cadi justice'". Indeed, although the reasoning in some traditional Chinese adjudicatory instruments did involve Qingli, by institutional design, "once the adjudicator attempted to make a ruling that went beyond the existing legislation, the final validity of the ruling automatically shifted to the emperor's hands." As a result, in the vast majority of cases, traditional Chinese cases of murder and theft (roughly corresponding to contemporary criminal cases) were in fact still subject to the strict limitations of statutory law. Many scholars have refuted the judgement of "Kadi justice" on the basis of historical data. For example, Mr Yu Ronggen has pointed out that "the bailiffs, the middle and lower level officials kept the text according to the law - at this level, the crime and punishment were legalistic." Therefore, the normativity of Qingli is not at liberty to play a role in traditional Chinese judicial decisions.

So what is the uniqueness of Qingli as a vocabulary unique to Chinese culture? What is the significance of talking about Qingli today for contemporary judicial practice? As the judges in ancient and modern times and at home and abroad in the process of legal discovery and the construction of legal facts must be inseparable from the individual value judgement, therefore, the basis for adjudication, whether it is a clear statutory law or need to rely on inductive reasoning and non-substantive norms, must rely on people in the long-term production of life in the formation of the rational understanding. Of course, rational understanding can also be condensed into "legal theory" and "matter", which makes in some cases the term "Qingli" and "reason" and "reason" and "reason" and "reason" and "reason" and "reason" and "reason" and "reason" and "reason" and "reason" and "reason" and "reason" and "reason". This has led in some instances to the term "reason" being confused with concepts such as "matter" and "jurisprudence". For example, in the case mentioned above (2020) Yu criminal final No. 74, "express delivery staff in the routine inspection will not use tools to open the suitcase for inspection" this implied Qingli is actually a "subjective motivation of legal facts, objective reasons", is a typical "matter of fact", is a typical "matter of fact". Is a typical "matter of fact". This is also from the side, "law, matter, Qingli is not isolated, but organic unity, closely linked, each other". Therefore, "Qingli" is by no means a concept unique to China, and empirical reasoning is basically equivalent to the concept of "rules of thumb" is from the civil law system. "The compound word Qingli can convey not only the moral meaning of heavenly justice and human feelings, but also the more mundane and practical meaning of thinking about the case from a common-sense point of view." Thus, if we think only in terms of Experience and normativity, the unique contemporary meaning of Qingli is likely to be dissolved by the general laws of justice. We need to go beyond the technical level of exploration and think about the uniqueness of Qingli from a higher-order perspective.

In this regard, Mr Liang Shuming has had a very incisive argument, he pointed out: "in a large group of an office organ, to cope with the people, dealing with everything, only to set out the laws and regulations and abide by them, no matter what people come to a uniform view. Then it is less talkative, free of disputes, the official business is carried out quickly, and the order to establish, the group sentiment to peace. Although it is not inevitable to ignore individual cases, and strong not Qi thought Qi, not even the case is not reasonable. But it is not so, the big and small things will not be able to do. The necessity of the rule of law but in this." This is what Mr. Liang Shuming said, "Western law enforcement and Chinese favouritism" of the opposition. The formal rule of law produces the result that "order is established and public sentiment is at peace" through the establishment of general standards, but the general standards "inevitably ignore individual cases" and "do not accord with feelings and reasoning". ". If we look at this logic the other way round, "favouritism" means, to some extent, the discovery of the specificity of individual cases, while the application of Qingli can avoid the neglect of individual cases under the formal rule of law. Therefore, we will find in the macro-cultural context, the use of Qingli mode and the criminal trial of the various conflicts between formal justice and substantive justice, which is rooted in the differences in thinking caused by Chinese and Western cultures.

Specifically, western culture is a dualistic culture. In the view of westerners, "nature is senseless". Therefore, "Westerners study the universe as if it were external". Westerners were accustomed to thinking about the objective world from the standpoint of subject-object dichotomy. Thales, the founder of the earliest Western philosophical school, the Miletus School, believed that everything is composed of objective matter, i.e. water. This is a typical mode of thinking that separates the subject from the object, and the development of modern capitalism in the West has proceeded on the basis of such thinking, for example, that nature has been regarded as a completely independent object, which in turn has led to excessive demands on the natural world. Such a dualistic structure is also clearly visible in the history of Western legal thought: from classical natural law to theological natural law, the Western conception of law has always been dualistic. Even in modern times, with the rise of rationalism and the emergence of positivist jurisprudence, from the structural point of view is only the position of reason instead of the position of God, and the formal rule of law with calculability is the expression of reason. From this rationalism arose, and the written code as the embodiment of reason became the universal pursuit of civil law countries. In such thinking, the code is perfect, the law can not be violated, beyond the law is beyond reason. Therefore, the traditional Eastern style of justice, which is formed by pursuing substantive justice, is nothing but illusory justice in Weber's view, and only calculable formal justice is real justice.

On the contrary, Chinese culture is a culture in which subject and object are one, and "the way of heaven and the way of man are but one". The legend of the creation of the world by Pangu has already indicated such a cultural gene, and the change of the Shang and Zhou dynasties has even laid down the cultural turn of heaven and man being connected. As Mr Qian Mu said, "The unity of heaven and man is the highest belief of Chinese culture, and the unity of culture and nature is the ultimate ideal of Chinese culture." In the cultural context of "the unity of man and heaven", "what the people desire, heaven will follow" and "heaven sees what the people see, and heaven hears what the people hear". Whether or not positive law is just is judged by human standards. Therefore, the political structure of "heaven - ruler - people" is a closed circuit without absolute authority. Although formally "the law comes from the king", in fact "three feet of law and order, the people come out of it". The justice of individual cases was truly in line with the overall goal of "unity of heaven and mankind", and the legitimacy of the state law, the monarch, and the regime was manifested in the combination of individual cases of justice.

In this cultural context, "Chinese theoretical thinking has not left human relations". The absolute reverence for the formal rule of law does not have the lofty value of the Western style, but what is popular is precisely the so-called "wonderful judgement" that breaks through the formal rule of law. Therefore, the Chinese-style "Qingli" is directed at people, emphasising the search for consensus among people, with a distinct ethical nature. Such a mode of thinking is also the state pursued by the core of Confucian culture, namely, "benevolence": "If you wish to establish yourself, establish others; if you wish to achieve something, achieve it"; "Do not do unto others what you would not have them do unto you". Therefore, "in the modern society with diversified interests, diversified values, diversified morals and diversified aesthetics, legal Qingli belongs to the sense of 'empathy'". In 2019, the Supreme People's Court mentioned in the Proceedings of the National Courts' Civil and Commercial Trial Work Conference that "we should empathise with Qingli". "In 2019, the Supreme People's Court mentioned in the Minutes of the National Court Civil and Commercial Trial Work Conference that "we should empathise with and reason through Qingli", and this emphasis on "empathy" precisely reflects a precise grasp of the cultural characteristics of Qingli. On the other hand, to cut or even ignore the particularity of individual cases with a kind of formalised thinking is neither in line with the Chinese thinking mode nor the justice in the Chinese mind.

However, along with the beginning of the Law Reform in the late Qing Dynasty, the Chinese legal system gradually disintegrated formally, and the process of modernising the Chinese legal system was strongly influenced by the West, and the pursuit of formal rationality penetrated into the legislation and justice of modern China. In the legislative aspect, the series of difficulties formed by the traditional law due to the ethics of identity had triggered heated debates during the Rites and Law Controversy, while the judicial tradition emphasising the "exhaustion of Qing and law" was increasingly restricted by the increasingly sophisticated judicial technology of the contemporary era. "Legislation and jurisprudential techniques have become highly westernised, removing the ethical character of the Chinese legal system and to some extent detaching it from the legal culture of its contemporaries. ...... Currently China's increasingly technologised justice is moving further and further away from Qingli as knowledge becomes more abstract and neutral, and formal rationality and formal justice are emphasised." Thus, the normativity of Qingli is necessarily compressed under the framework of the formal rule of law and turns to manifest itself in the form of rules of thumb. However, the formal rule of law can not suppress the parties and the public's "sense of justice and equity" in individual cases. When "the contradiction between positive law and justice reaches such an intolerable level", the normativity of Qing and law comes to the fore, and the problem of Qingli is thus formed.

5 安群情洽情理Anqun Qingqia Qingli: the perfect path of the use of the Qingli mode of operation

Of course, under the premise that Experience is not the unique orientation of Qingli, today we talk about Qingli again, not to exalt the normativity of Qingli, which is not only inconsistent with the formal rule of law that has become the mainstream pursuit of judicial decision-making in China nowadays, but also contrary to the actual style of traditional justice. As mentioned above, Qingli is most valuable to the contemporary judicial context is to explore the thinking of the specificity of individual cases with a kind of empathy. In this kind of attention to the particularity of the thinking, the judicial decision can not only achieve the form of the rule of law to bring the positive effect of "order to establish, the masses of people in order to peace", and at the same time can avoid "ignore the individual circumstances" and thus produce the case of the At the same time, it can also avoid "neglecting individual cases" and thus creating cases that are "not in tune with Qingli and not in tune with reason", which is the direction in which the application of the model of Qingli should be perfected in the future. In this regard, this part of the universal and particular level in turn.

From the level of universality, the use of both the empirical and normativity functions of Qingli is a process from inductive to deductive reasoning, which begins with the triggering of the facts of a case and the need for reasoning. However, if judges viewed all cases as one-to-one correspondence with legal norms, judicial decisions would naturally not require a more complex reasoning process, and the process of Qingli's figurative reasoning would not be triggered. But this is clearly not the reality. Therefore, the judge should firstly be guided by empathy to realise that each case is special, and as comprehensive and three-dimensional understanding of the facts of the case, and then in the case of the facts and reasoning needs to be triggered to start the Qingli figurative process. In this process, the judge should separate different social roles from his or her "role series", and on the basis of different roles and beyond the individual roles, to achieve the meaning of Qingli's axiomatic evidence.

For example, for judges, the professional role of adjudicator makes the process of inductive reasoning based on the guidance of legal professionalism; the role of ordinary citizens makes the personal life experience form the basis of inductive reasoning; as a natural individual with feelings of joy, anger, sorrow and happiness, moral intuition can also contribute to the axiomatic proof of Qingli; and even the difference of gender roles can lead to the differentiation of the legal method. By separating role clusters, the process of Qingli visualisation can move beyond a single field towards full induction. Since the construction of legal facts is shaped by the interactions of litigants, the judge, in addition to expanding the scope of his inductive reasoning through the separation of role clusters, should also incorporate external opinions into the scope of reference for inductive reasoning. For example, the defence, which has a counterpart and antagonistic relationship with the judge, is particularly deserving of the judge's careful attention, and the judge's response to the reasonableness of its content is all the more important. In addition, industry standards on a given issue, expert opinions, and analogous cases, among other things, should all be considered in the context of inductive reasoning to reduce the contingency of Qingli.

The biggest problem with the use of the empirical function of Qingli is the lack of reasoning that is currently reflected at the level of adjudicative documents. The use of the empirical function of Qingli is a very complex reasoning process, the three-part theory is only through a seemingly strong logic to show the reasoning process and the legitimacy of the decision itself. But legitimacy is not necessarily reasonableness, as one experienced judge put it, "In this trinitarian theory, the sense of law that precedes the 'master' disappears, and the judge lets his judgement present a face of cold logic." This cold logical display is obviously inconsistent with the direction of reform of our current adjudicative reasoning, and at the same time, the contingent nature of Qingli requires that the reasoning process must be made public in adjudicative reasoning. Therefore, the core requirement of using the empirical function of Qingli is to reduce the contingency of reasoning, which requires judges to refine and strengthen the adjudication reasoning. Judges should respond positively to Qingli-based defences by demonstrating the reasoning process in detail, thus achieving the purpose of using the law in the context of emotions. It should be noted that the judge put forward higher requirements of the referee reasoning form is by no means simply expanding the length of the reasoning, more important content is that, by showing the reasoning process to the public to force the judge to seriously examine their own decision, and then from the internal evidence and external evidence of two levels to strengthen the credibility of the referee and the authority of the judge, which "essentially expresses the party's This "is essentially an expression of respect for the litigation rights of the parties, is the 'people-centred' concept of the rule of law in the judicial field of the concrete embodiment".

For the application of the normativity function of Qingli, the user should indeed be cautious in criminal trials. However, "this is not to say that the pursuit of 'case-by-case justified' answers plays no role at all in interpretation. It is even of great significance. It has always been the driving force behind a thorough rethinking of legal interpretation and the search for new perspectives." If the conclusions reached in accordance with the law are unacceptable, or if dissenting opinions begin to present themselves in individual cases in the form of normativity discourses, or even have a tendency to develop towards public opinion, then the judge is sufficiently motivated to carry out an iterative comparison between the norms and the facts, with a particular focus on examining the external testimony, i.e., on examining whether something has gone wrong with the legal discovery and with the construction of the legal facts. This process of comparison also requires separate role clusters of thinking, i.e., examining large and small premises under the different perspectives of professional and lay roles, respectively. If there is no problem with the factual findings and the application of the law, then the judge should consider the lesser of law or Qingli at the normative level. In this regard, the specific considerations can be divided into two cases:

The first situation is that the law outweighs Qingli. The central question in this case is whether the Qingli in the individual case can be proved universally. In other words, "the Qingli judgement must not only take into account the specific circumstances of each case, but the special judgement of these specific circumstances must be able to be sublimated into the most simple and universal common sense and reason". This is because in real life the exact same two cases do not exist, the different wealth and social status of the parties may trigger diametrically opposed social opinion. Although the emphasis on Qingli implies the discovery of case-by-case justice formatted by the formal rule of law, it does not mean that the case-by-case justice behind the Qingli has to be realised. This is because "an empathic jurisprudence may foster short-sighted substantive justice because that capacity for imaginative access to the worldviews, emotions, and experiences of others diminishes with greater physical, social, and temporal distance. More fundamentally, this immanent perspective of situatedness - gained through empathic imagination - lacks normative significance." If the specificity of the case cannot be generalised, then such a Qingli lacks legitimacy, even if it has normative significance. In this case, the judge needs to adhere to the premise of the legal norms, based on the legal norms to the law to explain the situation, with fine reasoning to eliminate the parties and the public for the referee's challenge.

The second situation is that Qingli outweighs the law. If the case of Qingli is indeed universal, and "the conflict between the written law and justice has reached an intolerable degree", then the judge should seriously consider the normativity of Qingli function. Of course, the application of the normativity of Qingli is not the same as "substituting the law with emotion", the normativity of Qingli must rely on the existing legal system in order to be justified into the judgement. In fact, most of the opposition between formal justice and substantive justice is due to the need for theoretical discussion, usually the substantive justice is compatible with formal justice. "The rule of law is never merely a set of formal rational rules piled on top of one another, but also an institutional civilisation rendered by the carrying of a public-spirited Qingli." The legal system itself is not ironclad, and there is a great deal of space within it that can accommodate case-by-case justice. In terms of legal language, the existence of a vacancy structure provides interpretive space for the entry of Qingli normativity. From the viewpoint of legislative technology, modern criminal legislation has basically abandoned the position of absolute legal penalties and given judges a certain amount of discretionary space, even in extreme cases, still leaving a channel of relief for sentencing below the legal penalties, all of which are legitimate paths for Qingli to enter into individual cases under the premise of not violating the norms of the law. Therefore, if a situation occurs where Qingli outweighs the law, the judge needs to use judicial techniques to move the situation into the law.

Of course, the reality of the situation is far more complex than the theory, not only the two functions of Qingli may appear in the same case, the two modes of normativity may also appear in the following situation: in a case, the judge at the beginning that the law is greater than the Qingli and strictly in accordance with the law, and then pressure from all sides of the judge forced to re-examine the case, which the judge or through the use of judicial technology to move the Qingli into the law, or to a more sophisticated reasoning to uphold the original verdict. The judge may use judicial techniques to incorporate emotions into the law, or uphold the original judgement with more sophisticated reasoning. Many of the Qing and law problems that have aroused public concern have alternated between these two modes. However, we should see that it is such a tug-of-war process that enables substantive justice to fill the gap of formal justice through individual cases, and the entire legal normative system is thus becoming more and more perfect.

Conclusion

Talking about the word "Qingli", many people often involuntarily associated with the "love instead of law" situation, thus excluding the modern judicial context to explore the issue of Qingli. However, through the empirical research in this paper, we can see that in the contemporary criminal trial, there is almost no "feelings instead of law" situation. Even if there is a conflict between Qing and law cases, the judge can also adhere to the premise of the trial in accordance with the law to achieve justice, which is the paper with the help of the conclusion of the first want to clarify the content. Secondly, most of the current research on Qingli failed to make a distinction between the context of civil litigation context and criminal procedure context, which makes the abstract question of Qingli become more ambiguous. Due to the qualitative difference in the litigation structure, therefore, the use of Qingli in civil litigation and criminal proceedings in the mode of application there will be differences, which can be seen from the normativity of Qingli's function in the criminal collateral civil litigation. The ensuing question is: Qingli in civil litigation in the use of the mode of how the situation? In the civil trial whether there will be "to feelings instead of law" possible? These questions are not only worth continuing in-depth study, but also reminds us that the discussion of Qingli must be made in the context of civil litigation context and criminal procedure context. Finally, it should be noted that this paper is to "Qingli" as a symbol to carry out the study, but in fact, there are still "common sense" "common sense" and so on and "Qingli" as a symbol. "Qingli" in function is basically the same symbol. The specific reference of these symbols sometimes belongs to the category of "Qingli", and sometimes belongs to the content of "matter" and "jurisprudence". However, due to the limitation of the research method, this paper can only choose "Qingli", the symbol with the most Chinese characteristics, as the research object, but the relevant conclusions can still be used as a reference for the research of "common sense" and "common sense". However, the relevant conclusions can still be used as a reference for the study of "common sense" and "common sense". At the same time, the data from the empirical study found that the use of Qingli showed a clear and statistically significant correlation with the gender and education level of the person concerned. However, due to the length and logical completeness of the article, this paper can only set aside more information for a more in-depth study.