以社会学法律解释方法为视角评析电梯劝烟猝死案（英文）

日期:19-06-19 来源: 作者:admin

摘要(Abstract)：

I. INTRODUCTION On an ordinary day in May 2017, Yang went downstairs to take the express, and when he entered the elevator, an old man was smoking. For his professional instinct, Yang advised this old man not to smoke in the elevator,but the old man therefore argued with Yang. After arguing in the elevator,they went to the property management department located on the first floor to find property management staff. At that time the staff appeased and

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作者(Author): 时宇娇;

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参考文献(References)：

1 Zhengzhou City of He’nan Province(2017)Yu(01)Civil Final Judgment No.14848.
2 WANG LIMING,LEGAL METHODOLOGY,at 441(China Renmin University Press,2012).
3 YANG RENSHOU,LEGAL METHODOLOGY,at 178(China University of Political Science and Law Press,1999).
4 LIANG HUIXING,THE HERMENEUTICS ON CIVIL LAW,at 152(China University of Political Science and Law Press,2000).
5 For example,in the crime of organizing prostitution stipulated in the Criminal Law,there may be two interpretations for organizing prostitution.One is the traditional interpretation,which is organizing female for prostitution;the second interpretation is that organizing prostitution shall include organizing female for prostitution and organizing male for prostitution.The court or judge can make predictions based on the social effects of the judgments caused by different interpretations and make a choice after weighing the social interests and values,which is choosing an interpretation that can achieve the best social effect in the two interpretations.If the meaning of the applicable legal provisions is very clear,the sociological legal interpretation method cannot be applied.For example,the Criminal Law stipulates that persons under the age of 18 do not apply to the death penalty.This legal provision is very certain and therefore does not apply to sociological legal interpretation.
6 After making the first-instance judgment,the plaintiff Tian,the daughter of the deceased,refused to accept the judgment(defendant shall compensate 15,000 yuan)and appealed,and the defendant Yang did not appeal,while the second-instance court made a more unfavorable judgment on the appellant rather than maintaining the original judgment.Therefore,the biggest doubt or controversy about the second-instance judgment was that whether it is legal or reasonable to make a more favorable change to the defendant Yang who did not appealed.Article 13 of the Civil Procedure Law of the People’s Republic of China stipulates that‘,The parties shall be entitled to dispose of their respective civil rights and procedural rights within the extent as permitted by law.’In this case,although the defendant was dissatisfied with the judgment of the first instance,but did not appeal,this can be understood as the defendant’s disposition of his own civil rights and litigation rights.The court of second instance should respect the right of disciplinary action granted to the parties.However,the court of second instance made a judgment that was favorable to the defendant without the defendant’s request,and the judgment against the appellant was more unfavorable.This is obviously contrary to the routine and common sense.Because this is the civil private prosecutions dispute after all,not a criminal prosecution case.In civil cases,the court should reasonably resolve the conflict of interest between the plaintiff and the defendant,and achieve the purpose of the interest and punishment.Therefore,in principle,it is necessary to respect the party’s autonomy of the right to legal and liberty,according to the litigation of the parties.If the request is for trial and judgment,if the party does not request it,then it will not be ignored.
7 Civil liability does not presuppose that the actor is at fault.Even if there is no fault,it may also bear civil liability based on the principle of fairness or other legal provisions.
8 It does not make sense if the court of second instance thinks that the first-instance judgment violates the prohibition of the law,or damages the national interest.
9 Zhao Hongqi,The Intermediate People’s Court of Zhengzhou Finally Confirmed That the Defendant Was Not Responsible,Legal Weekly,January 23,2018.
10 Kong Xiangjun,On the Unification of Legal Effect and Social Effect:An Analysis on Judicial Policy,1 Journal of Law Application 26,31(2005).
11 In addition,the lesson of the Pengyu case is that the court should disclose the facts of the case,the law applicable to the judgment,the interpretation of the law,the reasons for the judgment,and even the process of reasoning and argumentation to the media and the public in a timely manner,so as not to cause various speculations by the media and the public and the negative social impact.
12 ANDREW L.KAUFMAN,BENJAMIN CARDOZO,at 148(Zhang Shoudong trans.,The Law Press,2001).
13 Fair and impartial judgments have an important leading role in social justice.Unfair and partial judgments have a fatal destructive effect on social justice.Therefore,fairness and justice of judicial judgments are the basic interests of society.
14 YANG RENSHOU,supra note 3,133.
15 EDGAR BODENHEIMER,JURISPRUDENCE:THE PHILOSOPHY AND METHOD OF LAW,at 151(Deng Zhenglai trans.,China University of Political Science and Law Press,2004).
16 ROSCOE POUND,SOCIAL CONTROL THROUGH LAW,at 101(Shen Zongling&Dong Shizhong trans.,The Commercial Press,1984).
17 WU ZEYONG,REVIEW ON THE SECOND-INSTANCE JUDGMENT OF THE‘CASE OF PERSUADING SMOKING IN ELEVATOR’,at http://www.yidianzixun.com/article/0IE0rcOV(Last visited on January 28,2018).
18 BENJAMIN CARDOZO,THE NATURE OF JUDICIAL PROCESS,at 69(Shu Li trans.,The Commercial Press,2000).
19 LIANG HUIXING,supra note 4.
20 EDGAR BODENHEIMER,supra note 15,10-11.
21 HENRY S.MAINE,ANCIENT LAW,at 15(Shen Jingyi trans.,The Commercial Press,1959).
22 Yan Tianhuai,The Boundary of Legal Remedies,9 Reading 143,149(2005).
23 Id.

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