Xiang Keqiang, Master of Civil and Commercial Law, Assistant Judge of Qingtian County People's Court in Zhejiang Province
Huang Juexiao, Bachelor of Laws, President of the Second Civil Division of the Qingtian County People's Court in Zhejiang Province
Abstract: The current rural governance model is gradually changing from the traditional centralized governance of the state to the public collaborative governance model, which is behind the authoritative pluralism of local social governance and the concept of cooperation and coordination between different social subjects. In the rural environment where hard law and soft law are coordinated, the judiciary should meet the multiple capabilities of local social transformation and governance: on the one hand, the judiciary, as a dispute resolution mechanism with strong hard law attributes, should maintain the necessary respect for soft law in rural governance with flexible and diverse forms and strong practical roles, and achieve limited embedding to meet the pre-legal and post-legal functions of soft law in rural governance; on the other hand, judicial embedding itself should also actively respond to the soft law expectations of rural soft governance. Under the premise of adhering to the premise of maintaining the objective and neutral authority of the judiciary, fully respect the informal legal sources such as village rules and civil conventions and folk customs, realize pluralistic co-governance with soft law, and make up for the lack of refinement of hard law in specific governance. On the basis of summarizing the existing problems, the method of "limited embedding of hard law and pluralistic co-governance of soft and hard law" is proposed, in order to correctly handle the connection between hard law and soft law. However, this method is not static, and all localities should strengthen the practice and exploration of judicial embedding mechanisms according to local characteristics, give play to the potential of regional governance, and enhance the initiative of rural judicial work.
Keywords: rural governance Judicial embedding Hard law soft law
Rural governance is an important part of China's national governance system and the cornerstone of rural revitalization. Judging from the current rural governance model, there are both hard laws and regulations from the outside to the inside, and there are also soft laws and regulations from the inside out. From the perspective of expression, the hard legal system provides the most basic institutional and structural support for the rural governance model. The soft regulatory system is complemented by its unique flexibility and effectiveness, and plays a role in the process of public governance together with hard law. As a symbol of the "presence" of the state's judicial power in rural society, the rural judicial embedding mechanism should not only conform to the formal rationality of rural judicial governance, but also retain the necessary substantive concepts, so as to achieve "soft and hard" to meet the dual expectations of rural justice. Rural judicial workers must also keenly grasp the trend of this change in the governance system, grasp the degree of effective embedding of the judiciary, and conform to the development trend of rural judicial work.
First, the rural governance model under the dual regulation of hard law and soft law
(1) The system of hard laws and regulations in rural governance
It is generally believed that hard law refers to traditional law that is enacted, endorsed by the State and guaranteed by the coercive power of the State. Looking at the development process of the rural governance model, whether it is the state's initial "political control" over rural governance or the later "legal regulation", or the "collaborative dominance" model in recent years, the hard legal system reflects a typical characteristic of top-down and exogenous authority. The accumulation of experience over the years has also made the hard law form one of the most complete legal norms. From the perspective of the existing rural governance structure, the current forms of rural hard laws and regulations mainly include four existing models: dispatching courts, police stations, judicial offices, and township comprehensive management departments.
(2) Soft laws and regulations in rural governance
Soft law, as the name suggests, is the use of "soft" as a moderating word to describe "law". "Soft law is also law" is no longer a proposition in the domestic academic circles whether people are in favor of or against, and the rule of law actually includes soft law. From the perspective of pluralism in law, soft law generally refers to social norms formulated by relatively specific subjects, which are not guaranteed by the coercive power of the state, but can have an indirect impact. Specific to rural governance, the soft regulatory system is mainly reflected in the following three ways:
1. Village cadre governance model. Because the village autonomous organizations at all levels themselves have a strong hierarchical structure of administrative sections, coupled with the actual complex relationship that exists between the village autonomous organizations and the local township government in the process of daily work, the village cadres have been given the characteristics of "institutional elite" to a certain extent. Therefore, seeking village cadres to coordinate the handling of various disputes seems to have become the most common scene in the process of rural governance.
2. Economic strongman governance model. Poverty alleviation is the common goal of all villagers, and some villagers in the countryside who take the lead in making a fortune can easily generate prestige and authority in the countryside. At the same time, these economic strongmen who rely on rural development and rise often have a psychological motivation to seek influence and hope to intervene in village life. With the personal resources accumulated by these economic strongmen in the process of daily operation and communication, they can often play an important role in the process of resolving rural disputes.
3. Family governance model. The most typical feature of the rural social model is the "acquaintance society". In such a relatively closed social environment, the way of communication between people is often carried out through simple interpersonal relationships such as marriage and family affection, which is very easy to produce a "group pattern" such as a family. Based on the extended environment of the family, the cost of breach of contract and untrustworthiness is extremely high, so the group members in the family will generally restrain their own code of conduct according to the village etiquette law to avoid being "gossiped" when the melon field is down.
Second, the current dilemma in rural governance
(1) Hard law is too "hard"
Because of its seriousness and mandatory nature, hard law is still the most common legal norm in the current process of rural governance. However, the excessive reliance on the compulsion of hard laws has led to many problems in the process of rural governance. Taking the dispatch of courts as an example, in recent years, the types of cases accepted have been diversified, but neighborly relationships and family disputes are still difficult points in trial. The subject matter of such cases is often not large, but the contradictions are deeply rooted, and the "short parents" are sometimes difficult to clarify and difficult to resolve, and on the surface they are competing for interests, but behind them may be the entanglement of family affection, and even it is very easy to have retaliatory lawsuits. The limited resources and capacity of the judiciary make it difficult to send courts to resolve all rural disputes in a real sense. Hard law has its limitations, and the mandatory regulation of relying solely on hard law may be able to achieve a single "case closure", but it may not really be able to achieve the overall "matter" of the dispute. From the perspective of police stations, in practice, they can flexibly adopt two measures of punishment and mediation for general dispute cases. However, sometimes the parties actually only have the apparent freedom to choose between "mediation" and "punishment", and even in individual cases, there will be cases where "punishment" is used to suppress "mediation". In this case, it seems to eliminate the dispute, but in fact, the dispute is suppressed by consuming the time and money cost of the parties. Finally, judging from the practice of the township judicial office and the comprehensive management office, because it is not at the terminal of handling disputes and contradictions, the lack of linkage between various departments and the situation of independent administration occur from time to time. Sometimes there is a sense of prevarication, that is, it is advised that the parties go through judicial procedures and push a large number of difficult cases to the dispatch court. Helpless parties running back and forth between multiple departments will one day wear out patience and faith, and the result will often be to cross the level of petitioning.
(2) Soft method is too "soft"
The "softness" of soft law is mainly reflected in flexible governance. However, there are also difficulties in the application of soft law in the current process of rural governance. On the one hand, for a long time, the state's quasi-administrative management model of the rural section level has made the space for rural soft law governance relatively narrow. On the other hand, the non-mandatory defects inherent in soft methods make it difficult to play a universal normative role. That is, soft law norms still depend more on the heartfelt observance of each villager, and once the soft law norms are violated, they may be more only condemned by morality and conscience, and the legal responsibility is not clear.
(3) Insufficient synergy between hard law and soft law governance
Whether it is a hard regulatory system or a soft regulatory system, in essence, it is two subsystems under the macro system of rural governance. At present, many grassroots judicial personnel recognize the advantages and disadvantages of soft and hard laws, and they also consciously take the initiative to integrate and apply them in the process of handling disputes, which is particularly evident in the process of mediation. However, due to the lack of systematic institutional norms, how to integrate soft law and hard law, how to grasp each other' degrees, and how to divide labor between departments in disputes that require multi-departmental coordination and cooperation, there is no norm for reference, and it is inevitable that people will feel that they are somewhat incompetent based on the personal experience of judicial personnel. This shows that the collaborative governance of hard and soft law in practice is more of a primary and superficial collaboration. From the institutional level, the above phenomenon reflects the lack of interaction logic between the current hard legal system and the soft legal system, and the cooperation between them is disorderly.
Third, the ideal institutional arrangement of "soft and hard" in rural governance - the limited embedding of hard law and the pluralistic co-governance of soft and hard law
From birth, people are in various social networks. The essence of rural governance is to correctly handle the relationship between love, reason and law. As a social norm that restricts human behavior, the logical order between the three is vividly reflected in the order of language - first moving people with emotion, then convincing people with reason, and finally intimidating people with law. Therefore, the author believes that when applying soft law rules and hard law rules for rural governance, the general pattern of rural co-governance of "soft law first, hard law later" should be adopted, so as to achieve "limited embedding of hard law and pluralistic co-governance of soft and hard law", in order to exert the greatest governance effect.
(1) Limited embedding of hard methods
From the perspective of the practice of rural justice, the principle of limited embedding of hard law should be reflected in the recognition and guarantee of rural autonomy and rule by virtue by the rule of law of the state, mainly from the following three aspects:
1. Limitation of scope of application. Traditional Chinese villages are closed spaces with family and blood relations as the core, and the villagers' activities are narrow and their interpersonal relations are simple, which determines that the rule of etiquette represented by etiquette and virtue has become the universal norm of rural society. Although the rule of etiquette is not an institutionalized product, it is an out-and-out endogenous authority, and its public opinion force constrained by ethical order and clan law has become the main way to resolve contradictions. In the current critical period of post-rural social transformation, under the realistic conditions that the modern rural governance system represented by the rule of law, rule by virtue, and autonomy has not yet been fully integrated, the judiciary, as one of the state powers, should maintain an appropriate distance from the traditional rural order and leave room for soft law rules to be applied. In the process of rural governance, in principle, only criminal public prosecution cases, some administrative violation cases, civil special procedures and other cases should be judicially reviewed, and other contradictions and disputes involving rural governance should be handed over to soft law norms for regulation first.
2. Restriction of the applicable stage. Behind the changes in the rural governance model is the retreat of state power and the expansion of social autonomy space. From the perspective of the reality of rural governance, disputes and contradictions are resolved in accordance with the logical order of reason, reason and law. As a prominent representative of the hard legal system model, the judiciary should maintain humility and retreat from the soft legal system on the premise of fully respecting the traditional "village authority" and evaluating the disputes between the parties in accordance with the soft law norms, and following the traditional procedures to handle the disputes. Leave room and time for soft law norms such as "reason and reason" to deal with disputes. After the soft law norm is fully functional and has no solution, it finally intervenes.
3. Limit the order of intervention of the departments to which hard law applies. As mentioned above, the current forms of rural hard laws and regulations mainly include four types of models: dispatching courts, police stations, judicial offices, and township comprehensive management departments. The four types of models rely on different departments, and the arrangement of their intervention procedures should be sequential. Police stations, judicial offices, and township comprehensive management departments belong to administrative organs, and their order of intervention should be at the forefront of the departments where hard law applies. According to the division of duties of each department, the police station shall accept general public security management disputes and simple civil disputes in the village, the judicial office may provide legal services for civil disputes in which villagers have disputes, and the township comprehensive management department shall be responsible for handling administrative disputes and corresponding petitioning matters. The dispatch court belongs to the judicial organ, in the theoretical and normative level of dispute resolution terminal, once the soft legal system and other hard law departments fail to negotiate, the dispatch court will at any time through judicial procedures to "cover the coffin" of various disputes.
Of course, the limited retreat of the hard legal system, especially the withdrawal of judicial rules in the hard legal system, does not represent the complete banishment of judicial power in the rural order, and once the contradictions between the parties fail to resolve, the final characteristics of the judiciary will also directly determine that the dispute will be forcibly terminated in a legally correct way. Therefore, the limited retreat is only to push the soft law to the initial stage of resolving disputes, arrange more suitable people to a more suitable stage to mediate disputes, and strive to mediate disputes in a "human" environment, shake hands and make peace, and give full play to the normative function of soft law.
(2) Pluralistic governance of hard and soft laws
At present, our society is in the process of transformation, and the local society is naturally inevitably involved. With the transformation of traditional rural society to the post-rural social form, the rural social structure has undergone drastic changes, and the pattern of interest distribution has also undergone great adjustment. At the same time, the diversity of dispute types and the complexity of conflicts are also more evident. Under the new situation, in order to achieve mediation and contention in rural governance, it is necessary to make good use of all kinds of hard law norms and soft law resources.
Although the rural dispute resolution mechanism is constantly being updated with the transformation of rural society and the adjustment of various interest relations, it is generally classified into three categories: one is the independent private relief methods between villagers, mainly self-determination, avoidance, tolerance and reconciliation; the second is the social relief method, which belongs to the non-judicial third-party intervention model, which includes not only individuals with high authority and high trust in the acquaintance group, but also grass-roots mass autonomous organizations and people's mediation organizations. In this model, the consensuality of the parties is relatively weakened due to the intervention of a third party, but the procedural requirements are enhanced, and the degree of enforcement of the mediation result is improved due to the presence of third-party supervision. The third category is the form of public remedies. "Public relief" is a third-party intervention model of public power, which includes administrative power intervention and judicial power intervention, which is mostly manifested in administrative mediation, litigation, arbitration, pre-litigation mediation, etc. In this model, the consensuality of all parties is weaker than the former two, and the procedural requirements are also the highest.
The author believes that the essence of the "pluralism" of hard law and soft law governance that we advocate is to incorporate various hard law and soft law models into the current rural dispute resolution mechanism. That is, fully mobilize and utilize existing resources, actively build a step-by-step resolution mechanism for contradictions and disputes, adhere to the "people (private relief) - village (various types of mediation organizations) - townships (various administrative organs) - courts" as the main line, fully realize hierarchical diversion, and ensure that each appeal has a corresponding resolution mechanism. Give full play to the role of "soft law first" in dispute prevention, discover the focus of social contradictions in advance, and timely intervene to prevent and resolve general disputes. Adhere to the role of "hard law is behind", save limited public resources to concentrate on resolving major risks, fully realize the diversification of dispute resolution subjects, the socialization of dispute resolution methods, and the diversification of dispute resolution mechanisms, and realize the benign interaction of hard law and soft law collaborative governance.
(3) Collaborative "co-governance" of soft and hard methods
The "governance of soft law is first", based on mediation first, scientific diversion, and the non-litigation resolution mechanism in the front; the "limited intervention" of hard law is based on the guarantee of litigation judgment and judicial coercive power. Through the early step-by-step resolution mechanism, a number of simple or policy disputes will be resolved, and the real disputes that need judicial evaluation will be introduced into the court, which will greatly alleviate the contradiction between the number of court cases and the small number of court cases, and enhance the court's "refined trial" space for such cases. At the same time, establish a mechanism for linking litigation and mediation. Through the agreement reached in the previous settlement, apply to the court for pre-litigation mediation confirmation, or use litigation mediation to give compulsory protection. In this way, it will change from "specialist acceptance" to "general acceptance", from "single-department handling" to "multi-departmental coordinated handling", revitalize resources to efficiently resolve rural disputes, and realize soft and hard law collaborative governance.
Since then, a plan of diversified solutions has been presented, and each department has performed its own duties and grasped the joint management, and finally formed a rural governance pattern with wide participation from all walks of life.
IV. Give play to local characteristics to improve judicial embedding mechanisms
Due to the difference between the north and the south and the difference between the east and the west in the rural development of China, this also makes the rural governance model in various parts of China show a diversified trend. Each unique local governance model can not only provide a variety of alternative blueprints for the country's modern governance system, but also release the potential of local governance to the greatest extent and promote the comprehensive revitalization of rural areas.
According to the author's understanding, some areas in China have explored an efficient and linked overseas Chinese governance model based on overseas Chinese capital based on overseas Chinese capital based on the characteristics of overseas Chinese repatriation. Among them, the government level makes full use of the "economic strongman" effect of overseas Chinese leaders, sets up overseas Chinese people's mediation committees at the rural level, forms an enthusiastic overseas Chinese mediation team, hires overseas Chinese village officials, and builds a new rural grassroots social governance model with mass autonomy as the main body, overseas Chinese participation as the axis, and flexible governance as the leader. At the county level, a county-level social contradiction and dispute mediation and resolution center is established. At the court level, employ overseas judicial liaison officers, establish overseas judicial liaison platforms, select overseas Chinese people's assessors, actively and proactively dock with overseas Chinese people's mediation committees, and create a foreign-related judicial convenience service network. At the same time, the court implanted the traditional Chinese "harmony and beauty" culture into the people's assessor system, and absorbed and borrowed the favorable factors of the foreign "grand jury" system, combined with the "gene" of China's traditional judicial mediation culture, and created a unique mechanism for public opinion participation and trial assistance - the people's observation mediation group system. Through this system, the people's opinions are listened to, the judicial democracy is expanded, the disputes are resolved based on mediation and substance, and the path of diversified dispute resolution is broadened.
Judging from the development context of historical theory, the rural governance model should never be "thriving", but should be "a hundred flowers blooming". Whether it is the government, social organizations or villagers, they should proceed from reality and explore a new pattern of pluralistic governance in which the main body of governance has its own place and the win-win game.