Abstract

As the core issue of judicial research，adjudication is the process that judge applies the law. One of the basic questions of judge’s judgment is which factors besides law will affect judge’s judgment. The different law schools have different arguments on it. Referee theory of concept of law regards law as a logical reasoning process，then assumes the same facts results in the same decision. By contrast，realist school of law and the sociology of case etc. Think that law is not assumed to be logic；it must be affected by some factors besides law. It is worthwhile to study whether some factors besides law will affect judge’s judgment in judicial practice in China，if present，what are these factors and how influential they are，and whether there is a pattern in such influence. It is significant to analyze the judge’s behavior patterns，understand the process of judicial and realize the judicial fairness and justice and so on.

For the reason that judges shall strictly follow the principle of legally prescribed punishment in criminal lawsuit，criminal adjudication has the strongest certainty. It is more persuasive that this paper takes 1060 criminal judgments in Beijing area as a sample by empirical analysis to explore the influence of the social structure on the judgments.

What’s the biggest difficulty to study the influence of case’s social structure on judgment is how to find a scientific and unified standard to measure the results of the adjudication. On the basis of the research results of criminal law scholars and practical experience of criminal justice，this paper creates the concept of “punishment strength”，which based on prison month and the severity of different punishment，quantitatively analyzes the strength of the different criminal defendant to be punished.

This paper has collected 1350 criminal defendants’ punishment strength in 1060 criminal judgments through calculation model of punishment strength. According to average punishment strength of parties，I analyze the influence on judgment results exerted by defendant’s sex，age，native place，nation，education degree，occupation and victim’s character；According to average punishment strength by judges’ sentences，I analyze the influence on judgment result of judge’s sex，native place，administrative duties，marital status，education degree，individual experience，age and the years of judge career；And then I analyze the influence on judgments of similar or different social structure factors of judge and parties.

The paper finds that the social structure of the case does affect Chinese judge’s adjudication and there are some common patterns in direction and strength.

From the direction of influence，there are such rules：first，overall，judge prefers to sympathize with parties of vulnerable ascribed status（such as female，the elderly）and be severe to parties of strong ascribed status（such as male，the young people）；second，judge prefers to sympathize with parties of strong achieved status（such as highly educated people，the white-collar worker）and be severe to parties of vulnerable achieved status（such as lowly educated people，the unemployed，the peasant）；third，if a judge has rich social experience and his social distance is close to the parties，he tends to be relatively lenient，and on the contrary case，he will be relatively severe；fourth，judge tends to be relatively lenient to the parties who have similar social structure factors to himself；fifth，in theft cases，the defendant who steals from the social organization will get relatively mild punishment than who steals from individuals.

From the strength of influence，there are such rules：first，on the whole，case’s social structure of parties has greater influence than other social structure features；second，the statutory social structure has greater influence than other social structure features；third，case’s social structure of defendants’ achieved status has greater influence than that of ascribed status；fourth，judge’s age has greater influence on adjudication than judge’s social attribute，and the nature of the judge has minimum influence；fifth，when the judge and the parties have the same or similar social structure characteristics，the influence on adjudication will increase dramatically.

Though the conclusion of the sociology of case also applies to China’s judicial system，it presents quite a few different characteristics from western countries. In China’s judicial system，defendant’s place of birth，education degree and judge’s education degree，administrative duties or individual experience，rather than defendant’s race，religion，etc. Will be the main factors influencing the adjudication.

The reason of influence on judge’s judgment by the social structure is that，in the first，from the perspective of legal norms，the legal norm itself is abstract，general and ambiguous，so there is a scope of discretion of the judge when he applies the law；secondly，from the perspective of judge’s psychology，as a natural person，judge must be affected by personal experience，which naturally leads him to sympathize with the parties of similar social structure characteristics；thirdly，from the perspective of rational judge，the judge has his own interests，and when he tends to avoid stress and risk，the influence of social structure on referee will emerge；fourthly，from the perspective of the legal culture，Chinese traditional legal culture of “the ritual” and “virtue” is filled with legal inequality of social structure，it still has a profound influence on contemporary judicial system.

Keywords：Social Structure of Case；Judgments；Punishment Strength；Party Factor；Judge Factor.