Administration of justice: The judging amount of freedom, with the freedom injury

China is a magical country. Very dry as dust judicial case can become the legend story too sometimes. However, the legend story of China, the ugly duckling turns into a white swan to seldom have, white swan turns into an ugly duckling to often have.

" Information Times " today ' March 16) Say how one ten million rich men are misjudged on purpose by one of the court for us, become the beggar's legend. There is an entrepreneur to talk about Xinyu of Jiangxi Province, it is Ruan JinYi, have a ten million yuan worth of building under construction in 1998. Because of the construction fund of 1,500,000 yuan of shortage, have to borrow the usury from Wu LongBin. Wu requires both sides to sign the false transfer agreement on the grounds that the borrowed money interest is too high to protect by law, shift land to his name first, assure as the borrowed money; Sign, transfer agreement instead and then, buy, come back by Ruan land. Certainly, Wu has not paid fund of any transfer, has transferred and transferred the difference between the fund instead, it is the usury interest that Ruan will pay, it is 450,000 yuan.

In November of 1999, both sides agreed to refund it is date, Ruan JinYi planned to sell the refund of floor. But Wu LongBin brings a suit before court, thinks both sides transfer relations, land and house should belong to him. Judgement plaintiff dragon Wu refined to win a lawsuit after Jiangxi Province Xinyu city intermediate people's court try, Wu gets the building, Ruan goes bankrupt. However, talking about this, the protagonist of the story has not appeared on the scene yet. The protagonist is not the people, but a piece of paper. That it is one that build Xinyu city intermediate court official seal " The letter of guarantee " ,Letter say so long as dragon Wu refined to pay 215,000 to court, judgement that he wins a lawsuit change the original sentence to never.

Have a chat, give the story with one friend of bar noon, he speak such thing cherish on the judicial circle, this is that the judges are right in judicial practice " The right of judging amount of freedom " Causing finally. Some Beijing one of district like judge that think say to him once, in some cases, the judge's judging amount of freedom, will become " injures freely " of one party of the party .

Not long ago, a friend of mine received the indictment that one intermediate court of provincial capital sent to, it is a cooperator before him that has forged a false consignment investment agreement, want the court to award a factory valued several ten million of my friend's to her. The court decide that closes down the account number of all three companies of his, freeze all fund and stock right, leave company use the car, send here close down make, saying afterwards stealthily: Close down this car, is kept by the plaintiff.

Several law circle personage think, behind the details of the case, connect with three cry out in alarm " evil intention " : Hostile contract, prosecute maliciously, close down maliciously. Prosecute in the provincial capital, administer the principle (my friend's company is not in the provincial capital) on the defendant's basic lawsuit after violating the plaintiff ; There are fixed assets which exceed the object of litigation not to seal, seal the account No., obstruct the production and management maliciously; Close down defendant's vehicle to keep for the defendant, occupy company's assets suspectedly for the plaintiff with the legal coat

The lawyer who the friend engaged offers exceeding the property of the value of object of litigation to prove to the court, apply to close down the assets, unfreeze the account number. The answer that the court begins is, try to get the plaintiff and agree first; Apply again, the answer of the court is, the apparatus is not easy to auction. It is more difficult to explain, the court sends to the indictment for more than one month, left less than 3 days of front yard ago, plaintiff's files still hide from and place the drawing room on file, does not allow consulting; And lawyer of friend deliver to the court to and countercharge the files will it be afternoon Friday, the plaintiff saw on the second day.

Should say, all these that the court makes, have not surmounted its " right of judging amount freely " . So-called " right of judging amount freely " ,Mean, the court or judge carries on the power of the free choice in the judicial activity legitimately. Want law have by applicability extensive one,it must last flexibility of a certain degree, can explaining, even uncertainty is and equivocal, make one's own adjudication according to the concrete details of the case without the judge, the case difficulty is tried. This keeps freedom and judges the basic reason which measures right. However, because the judge is the people, have knowledge and rational limitation, have personal taste and personal and terrible limitation, so, the judge, while exercising the right of judging amount of freedom actually, very difficult to make mistakes. So long as make mistakes, will cause the injury to the party of both parties unavoidably, such as the injury to Ruan JinYi of municipal court of Xinyu.

There are two kinds of right of cutting down amount of freedom to the party's injury, one injures involuntarily, namely corporal wound by mistake, it is caused by the knowledge of the court or judge and rational limitation; Another kind injures on purpose, it means the court or judges seeks and rents the party of the parties, and cause the injury to another party, Ruan Jin's justice case obviously injures on purpose.

Good news is, because of the intervention of the Supreme People's Court, the original sentence of the court of Xinyu is cancelled; Bad news is, this is a thing 10 years later. It is almost impossible to stop any place where the similar situation take place in the world, the possible one is, judge the relief which measures right to the administration of justice of abusing freely. For example defendant have the right, require whom him distrust examine judge avoid, have the right, require the strange land hear mainly, before place civil case on file want it if listening to defendant, appeal,etc..

In recent years, the norm " right of judging amount freely " Folk more and more the high of voice,think it judicial personnel the subjective and random and engaging in fraud for selfish ends for space, so, " right of judging amount freely " It can be small and small. On the other hand, freedom judges the existence of measuring right, indicate the independence of China's administration of justice is strengthened, this is a good thing. However, form a complete set without the independence of other power, it will cause the judicial corruption to lose judicial independence that restrains from, the judging amount of freedom will be turned into the freedom injury.