A Review on the Legitimacy of Binding Effect of Civil AdjudicationMeanwhile to Consensus-oriented Conception of Civil Procedure-
Date Issued
2009
Date
2009
Author(s)
Chen, Wei-Yu
Abstract
Through the analysis of the internal and external system of litigation institution the judgment with its binding effect shows as a product of material law and procedural law, moreover, the operation of litigation is also embedded in contemporary political and social context. Therefore, in order to find out the legitimacy of the compulsory effect of res judicata it demands reviews in macro along with micro level. Hence this thesis could be distinguished mainly into three parts: the first part is to define the authoritative and official nature of res judicata, from which the need to legitimize arises. By way of analysing the horizontal and vertical exchanges of legal cultures this thesis denies the so-called “necessary theory” and further declares the issue of democratic legitimacy. That is, referred to ancient chinese legal system it’s not the only method to keep determinacy of law via res judicata; besides, since both formal and substantial democratic constitution has been merged into taiwanese legal structure, people ask the performance of official power to be based on the principle of “self-government.” While a judgment appears to be rendered one-sidedly by judge and tells the parties action regulations, one queries its democratic legitimacy at once. Secondly this thesis investigates the theories which try to answer that question and then criticizes those responses. In other words, the “derivative theory” announces that if the law was applied correctly, the original democratic legitimacy of legislature which came from the self-determination of citizen would fluently pass to the judgment. But, applying laws to concrete cases is not simply a logical or mechanical process, rather, it composes of factors of evaluations. Especially under the trend of allowing judges to give future-oriented or policy-making verdicts, these deciders stand actually in the position of legislator, so that it’s hardly to recognize the success of derivation. “Analogical theory” emphasizes the legitimating function of procedure, and they assert that the parties could enjoy full freedom if the participation in lawsuit, which is analogical to legislative process, was perfectly protected. However, according to a wider concept of justice procedural justice can not totally take the place of substantial justice. It must point at substantial content to some extend. Just because the judge plays a deciding role, the procedure of litigation and legislation can’t be seen as the same. This theory is thus not satisfying, too. As to the “separation of power theory”, it’s said that without binding effect the judicial power couldn’t fulfill its function, namely check-and-balance, against legislative and executive power. Furthermore, the discretion power of judge while applying laws in accordance with this theory results from warranty or admission of legislators, that is, citizen. Yet when judgments tinge political considerations, the operation of judicial power goes beyond the validity of the primitive design, and the most important thing is that compared to authorizing in advance it better suits the democratic principle as parties can control their own case concretely. One could even advocate that only in the latter situation we are free from the threat of heteronomy. This thesis therefore concludes that these three theories don’t offer a complete resolution to the mentioned problem. In the third part this thesis introduces the “discursive reasonableness of regulative statement theory” and the appeal of “deliberative democracy,” which separately illustrates that the rightness of adjudication can merely be judged by consensus which stems from the communication or discussion between inter-subjective parties, and argues that ideal deliberative procedure should finally provide compulsory official decisions with legitimacy. Although each of them aims at different object, they share the same fundamental thought. Inspired by these ideas, this thesis newly recommends “consensus-oriented conception of civil procedure”, which should be taken as a guide to reconstruct the existing litigation institute. Among all of the possible reforms, the clarifying duty of judge and its execution act as key character. For outer frame of litigation it builds a free and equal environment, while for internal rule of litigation it promotes discussions with argumentations, and the achieved consensus would directly constitute the content of adjudication. In this way, parties could autonomously form their resolution for the given legal dispute, and that means that the principle of self-government and the basis of self-responsibility are simultaneously accomplished. Then the binding effect of res judicata acquires its democratic legitimacy.
Subjects
democratic legitimacy of res judicata
judge as (quasi-)legislator
procedural justice
discursive reasonableness of regulative statement
deliberative democracy
consensus-oriented conception of civil procedure
clarifying duty
SDGs
Type
thesis
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