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Resolution of Conflict of Interest in Chinese Civil Court Hearings

A Perspective of Discourse Information Theory

by Yunfeng Ge (Author)
©2018 Thesis 12 Pages
Series: Linguistic Insights, Volume 243

Summary

The rapid development of China’s economy has resulted in various kinds of conflict of interest (COI). This study focuses on how COI is resolved in Chinese civil court hearings via discourse information processing. Based on Discourse Information Theory, and the notions of Context Model Schema and Discourse Space, an analytical framework is constructed for the description, analysis and interpretation of the language used in Chinese court hearings.
Data analysis has revealed the following major findings: a) litigants in Chinese civil court hearings mainly resort to three information categories when making interest appeals: subjective, objective and explanatory information; b) the process of interest negotiation in court hearings is greatly influenced by such sociological, psychological and discursive factors as identities, intentions, information sharing status, discourse expectations, etc.; and c) different discourse management strategies are adopted to promote conciliation between litigants, among which information management, cognitive management and linguistic management are the most frequently used.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Contents
  • Acknowledgement
  • 1 Introduction
  • 1.1 Studies on Interest
  • 1.1.1 Interest and Classification of Interest
  • 1.1.1.1 Definition of Interest
  • 1.1.1.2 Classification of Interest
  • 1.1.2 Interest Relations
  • 1.1.2.1 Interest Difference
  • 1.1.2.2 Conflict of Interest (COI)
  • 1.1.3 Resolution of COI
  • 1.1.3.1 Resolution of COI through Coordination
  • 1.1.3.2 Resolution of COI through Legislation
  • 1.1.3.3 Resolution of COI through Litigation
  • 1.2 Research Objective and Research Questions
  • 1.3 Structure of the Book
  • 2 Discourse analysis and Courtroom Discourse
  • 2.1 Theories of Discourse Analysis
  • 2.1.1 Discourse Analysis in Cognitive Grammar
  • 2.1.1.1 Discourse Space
  • 2.1.1.2 Viewing Frame
  • 2.1.1.3 Construal
  • 2.1.2 Linguistic Information and Discourse Information
  • 2.1.2.1 Old Information and New Information
  • 2.1.2.2 Discourse Information Theory
  • 2.1.3 Context in Discourse Analysis
  • 2.1.3.1 Context in Functional Grammar
  • 2.1.3.2 Context as Participant Construct
  • 2.1.4 Discourse Management Model
  • 2.2 Studies on Courtroom Discourse
  • 2.2.1 Sociological Research on Courtroom Discourse
  • 2.2.1.1 Language in Evidence
  • 2.2.1.2 Narratives and Narrative Structure
  • 2.2.1.3 Language and Power in Court Hearings
  • 2.2.2 Courtroom Discourse from Cognitive Psychology
  • 2.2.3 Corpus Research on Courtroom Discourse
  • 2.3 Summary
  • 3 Theoretical Framework and Methodology
  • 3.1 Theoretical Background
  • 3.1.1 The Tree Information Structure Model
  • 3.1.2 Conceptualization
  • 3.1.3 Context Model Schema
  • 3.1.4 Construal Phenomena
  • 3.2 Theoretical Framework
  • 3.3 Analytical Framework
  • 3.4 Research Methodology
  • 3.4.1 General Considerations of Analysis
  • 3.4.2 Data Collection
  • 3.4.3 Data Analysis
  • 4 Features of Discourse Information in Interest Appeal
  • 4.1 Introduction
  • 4.2 Subjective Information: Making Claims or Counterclaims
  • 4.2.1 Claiming Damage Compensation
  • 4.2.1.1 Making Compensation Requests
  • 4.2.1.2 Defining Compensation Liability
  • 4.2.2 Attributing Fault
  • 4.2.2.1 Intentional Fault
  • 4.2.2.2 Negligent Fault
  • 4.2.3 Asserting Unlawful Act
  • 4.2.3.1 Performance of Unlawful Act
  • 4.2.3.2 Non-performance of Legal Obligation
  • 4.3 Objective Information: Providing Basis
  • 4.3.1 Background of Litigation
  • 4.3.1.1 Participants Involved in Litigation
  • 4.3.1.2 Legal Relationship between Litigants
  • 4.3.2 Cause of Litigation
  • 4.3.2.1 Course of Infringement
  • 4.3.2.2 Facts of Harm
  • 4.3.3 Ground for Claims
  • 4.3.3.1 Legal Ground
  • 4.3.3.2 Evidential Ground
  • 4.4 Explanatory Information: Ensuring Reasonableness
  • 4.4.1 Making Interpretations
  • 4.4.1.1 Defining Legal Terms or Relations
  • 4.4.1.2 Specifying Details
  • 4.4.2 Elaborating Connections
  • 4.4.2.1 Establishing Relevance
  • 4.4.2.2 Questioning Relevance
  • 4.4.3 Eliminating Uncertainties
  • 4.4.3.1 Clarifying Vagueness
  • 4.4.3.2 Removing Inconsistencies
  • 4.5 Summary
  • 5 Factors Influencing Interest Negotiation
  • 5.1 Introduction
  • 5.2 Sociological Factors
  • 5.2.1 Settings
  • 5.2.1.1 Temporal Settings
  • 5.2.1.2 Spatial Settings
  • 5.2.2 Participants
  • 5.2.2.1 Social Identities
  • 5.2.2.2 Social Relations
  • 5.3 Psychological Factors
  • 5.3.1 Intentions and Goals
  • 5.3.1.1 Expression of Intentions and Goals
  • 5.3.1.2 Modification of Intentions and Goals
  • 5.3.2 Information Sharing
  • 5.3.2.1 Information Sharing Category
  • 5.3.2.2 Transformation of Information Sharing Category
  • 5.3.3 Construal Phenomena
  • 5.3.3.1 Specificity: Information Elaboration
  • 5.3.3.2 Focusing: Information Foregrounding and Backgrounding
  • 5.3.3.3 Prominence: Information Profiling
  • 5.3.3.4 Perspective: Information Selection
  • 5.4 Discursive Factors
  • 5.4.1 Activation of Discourse Spaces
  • 5.4.2 Integration of Discourse Spaces
  • 5.4.3 Discourse Expectations
  • 5.5 Summary
  • 6 Discourse Management for Reaching Agreement
  • 6.1 Introduction
  • 6.2 Information Management
  • 6.2.1 Manipulation of Information Flow
  • 6.2.1.1 The Horizontal Development of Information
  • 6.2.1.2 The Vertical Development of Information
  • 6.2.1.3 The Cycling Development of Information
  • 6.2.2 Intervention of Information Transference
  • 6.2.2.1 Information Accretion
  • 6.2.2.2 Information Loss
  • 6.2.2.3 Information Reporting
  • 6.3 Cognitive Management
  • 6.3.1 Integration of Information
  • 6.3.1.1 Reinforcing Shared Information
  • 6.3.1.2 Eliminating Controversial Information
  • 6.3.2 Assimilation of Intentions and Goals
  • 6.3.3 Reconciliation of Construal Phenomena
  • 6.4 Linguistic Management
  • 6.4.1 Referential Management
  • 6.4.2 Thematic Management
  • 6.4.3 Rhetorical Management
  • 6.5 Summary
  • 7 Conclusion
  • 7.1 Summary of the Major Findings
  • 7.2 Answers to Research Questions
  • 7.3 Implications
  • 7.4 Limitations and Suggestions for Further Research
  • References
  • Appendix I Transcription Conventions
  • Appendix II List of Abbreviations
  • Index
  • Series index

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1  Introduction

With the rapid development of the economy of China, Chinese society has entered a transition period characteristic of various kinds of conflicts. These conflicts can be resolved in four different approaches: political approach, economical approach, ethical approach and legal approach (Wang 2010). As for the legal approach, two specific methods are frequently adopted: legislative control and judicial control (Bodenheimer 1962).

According to jurisprudence of interests, interest is the origin of law and the balancing of interest is one of the fundamental legislative principles (Bodenheimer 1962). On the other hand, law is the means by which interest is protected and realized when disputes arise. Therefore, both the legislative and judiciary organs of a nation are closely related to the interest of its fellow citizens. To be specific, the major function of legislators is, through legislation, to define the interest relations between different interest groups; and the ultimate aim of judicial officers – judges in particular – is to satisfy their different material or spiritual pursuit of interest. Actually, interest is regarded by Bodenheimer (1962) as the nucleus which both legislative and judicial activities center on. In this study, I will conduct the research on the conflict of interest (hereinafter referred to as COI) in Chinese civil court hearings. Particular attention will be focused on how participants of civil lawsuits commit themselves to the resolution of COI.

Needless to say, court hearings cannot be carried out without the use of language, and there is no exception as well when resolution of COI is concerned. Moreover, as a common practice of forensic linguistics, linguistic theories and methods contribute significantly to the revelation of the nature of legal issues (Levi 1990). Among the prevalent linguistic theories and methods, discourse analysis, with its comprehensive coverage and deep exploration of the nature of language, provides illuminating insights into the understanding of relevant activities in court hearings. This study, based on the discourse information theory ← 1 | 2 → and by integrating the context model schema and the relevant theories in cognitive grammar, will describe, analyze and interpret the language used in Chinese civil court hearings, with the expectation of revealing the process of how COI is resolved.

This chapter introduces the relevant studies on interest and COI, presents the general research objective and research questions, and outlines the structure of the book.

1.1  Studies on Interest

Human beings are not naturally born with the concept of interest. In early human history, the incidental and unsystematic interest theories were always shadowed by religious, ethical, and political influences, with people’s pursuit of interest being suppressed and severely restricted. It was not until Renaissance that the concept of interest was explicitly proposed by the bourgeoisie, who, by inquiring into human nature and social need, advocated the rationality of people’s pursuit of interest (Hao 2007: 49).

In the middle of the 19th century, with the increase of social wealth and people’s awareness of protection of interest, jurisprudence of interests was rewarded and respected for their advocacy of legalization of pursuit of interest. However, people’s pursuit of interest has moved from the extreme of being severely restricted towards the extreme of maximizing personal interest, which leads to complex interest conflicts and social problems (Hao 2007: 49). As a result, resolution of COI has become not only a social concern, but also a legal problem (Xia & Shi 2006).

This section introduces the basic terms related to interest theory, on the basis of which different approaches to resolution of COI are reviewed. ← 2 | 3 →

1.1.1  Interest and Classification of Interest

1.1.1.1  Definition of Interest

Sik (1962) defines interest as the demand of a subject to meet a long-lasting desire, which, if not satisfied, would initiate repetitive and even stronger pursuit. This definition, by regarding interest as a biological need of human beings, reveals the natural feature of the pursuit of interest (Zhang 2002). As is elaborated by Zhang (2002),it is just in the process of demanding and satisfying demand that human beings develop themselves as a natural existence. Sik’s definition also reveals the subjective feature of interest, namely, the dominance and initiative of human beings in pursuit of interest, since “human beings, with cognitive and practical abilities, always create conditions to satisfy their interest demand for the sake of existence and further development” (Sun 2008: 16).

However, Sik’s definition emphasizes too much of the natural need of interest and fails to take into account the social feature of interest (Sun 2008). Marx believes that although natural need is the drive of all kinds of human activities, the subjectivity of interest cannot be emphasized to such an extent that the social aspect of interest is ignored (Marx & Engels 1956). Marx treats interest as the fundamental concept in social analysis and regards pursuit of interest as the impetus for all social activities, in that “everything people struggle for is closely related to their interests” (Marx & Engels 1956: 82).

Accordingly, Wang focuses more on the social feature of interest by defining interest as “a form of social relation between interest subjects established during distribution of interest objects” (2010: 74). This definition, by identifying the need of human beings as the natural basis and the interrelation between interest subjects as the social basis, summarizes three fundamental features of interest: naturalness, subjectivity, and sociality, and can help us to have a comprehensive understanding of the nature of interest.

1.1.1.2  Classification of Interest

Interest is also a complex system which can be classified into different categories. The diversity of interest originates from the diversity of ← 3 | 4 → human need as a result of the development of the society. According to Sun (2008: 18), interest can be classified into different categories according to different standards, as is shown by the following table (Table 1–1).

Standard of ClassificationTypes of Interest
Subject differencePersonal interest, group interest, social interest
Object differenceEconomical/non-economical interest Material/spiritual interest
Temporal-spatial differenceCurrent/long-term interest Local/global interest
Difference of ImportanceFundamental/non-fundamental interest
Difference of influenceDirect/indirect interest

Table 1-1. Classification of Interest.

Classification of interest can help us understand the relations between different interest types. And more importantly, in addition to examining more profoundly the interest orientations and goals of different interest subjects, classification of interest can help to reveal their attitudes and behaviors when they are confronted with interest disputes or conflicts.

1.1.2  Interest Relations

According to Marxist theory (Wang 2010: 147), man’s production activity is the process of interest pursuit and acquisition from which interest relations originate. The relation between human beings is the relation of interest, on the basis of which society comes into being and develops. Therefore, human relations can be regarded as interest relations (Sun 2008: 18).

Theoretically, a society works best when all kinds of interest relations are kept in balance, especially when the personal interest motives of individuals conform to the maximal interest pursuit of the whole society. However, the absolute balance of interest relations is only a hypothetical optimum, and imbalance is the ordinary state, resulting in various kinds of interest differences which may develop into conflict of interest (Sun 2008: 24). ← 4 | 5 →

1.1.2.1  Interest Difference

In the process of social production and exchange, there always exists interest difference between individuals or groups. So interest difference is a kind of interest relation between interest subjects with different interest pursuits, and constitutes the basis of interest conflict. It is caused by the gap between the personal demand of individuals and the social demand of groups (Wang 2010: 155). Moreover, the distribution of social labor and the difference in possession of means of production are decisive factors that result in interest difference (Wang 2010: 156).

In his study of interest difference, Sun (2008) focuses more on personal interest. He (2008: 24) concludes that personal interest is the core component of interest relations, and therefore should be taken as the starting point in the analysis of interest difference.

In China, although interest difference is not a difference based upon class antagonism and interest is fundamentally consistent and compatible for all people, it is still likely, if not properly handled, to cause disputes or conflicts (Wang 2010: 159).

1.1.2.2  Conflict of Interest (COI)

Among the various kinds of interest relations, interest contradiction is the most stable and fundamental relation which is based on interest difference (Wang 2010: 159). The contradiction between man’s interest demand and social production provides the primitive impetus for the development of human society. Since social production is always conducted in certain economical relations, the contradiction between man’s interest demand and social production is certain to manifest itself in the form of personal interest contradiction (Wang 2010: 160). This position is very similar to Sun’s idea (2008) that interest difference is the starting point of interest analysis.

Under certain circumstances, interest difference and interest contradiction between different interest individuals or interest groups may escalate and develop into COI (Zhao 1998, Wang 2010). COI usually manifests itself as a dynamic social process, underlying which is the inconsistency of motives, intentions, goals and demands of interest subjects (Wang 2010: 166). ← 5 | 6 →

Being either antagonistic or non-antagonistic, COI can be classified into conflict between individuals and conflict between groups and has three basic forms of manifestation: emotional conflict, verbal conflict and behavioral conflict (Wang 2010: 170).

Studies on interest relations can help us to have a better understanding of its regularity, thus finding out efficient ways to prevent, control or resolve COI when necessary.

1.1.3  Resolution of COI

As was mentioned previously, COI can be resolved in a political approach, an economical approach, an ethical approach and a legal approach (Wang 2010). The first three approaches can be grouped into interest coordination (Sun, 2008); the legal approach can be further classified into legislative method and judiciary method (Xia & Shi 2006).

1.1.3.1  Resolution of COI through Coordination

Interest coordination is usually concerned with the balance of the relation between interest subjects, and the adjustment of their concepts of interest and their related behaviors, and is usually of economic, political and ethical features (Sun 2008).

There are five specific means of interest coordination: economic, political, cultural, ecological, and social (Sun 2008). The economic approach resolves COI through economic policy, and is regarded as the major approach in interest coordination, for it fundamentally resolves the conflict between interest subjects and interest objects by satisfying as much as possible the need of interest subjects (Wang 2010). The political approach “resorts to the function of government and the authority of other political institutions for the resolution of COI” (Wang 2010: 244). The cultural approach refers to “the coordination of interest by means of traditional cultural protection, cultural innovation, construction of cultural facilities, etc. to satisfy various kinds of cultural demands of different groups” (Sun 2008: 29). The ecological approach emphasizes “the protection of non-renewable resources to achieve the balance of interest acquisition” (Sun 2008: 31). The social approach ← 6 | 7 → attempts to coordinate interest of different groups “by comprehensively considering such social factors as law, government policy, market and public service” (Sun 2008: 30).

These means of interest coordination are quite practical in the resolution of COI. However, interest coordination is not the panacea for all kinds of COI, and interest contradiction cannot be totally prevented and resolved only through coordination (Wang 2010). For the complex interest relations, there must be a diversiform mechanism to resolve the possible COI, among which, legal approach is a basic and indispensible one (Chen 2010).

Although studies on interest coordination always include the legal approach as an important component in the resolution of COI, few of them have conducted profound and systematic investigation into it. The legal characteristics in resolution of COI cannot be neglected since “in modern society, resolution of conflict is always closely related with law” (Fan 2007: 117). Therefore, “it is of great necessity to examine the enforcement, function and operation status of the legal mechanism from the perspective of judicial practice and conflict resolution” (Fan 2007: 117).

1.1.3.2  Resolution of COI through Legislation

Details

Pages
12
Year
2018
ISBN (PDF)
9783034333146
ISBN (ePUB)
9783034333153
ISBN (MOBI)
9783034333160
ISBN (Hardcover)
9783034333139
DOI
10.3726/b13264
Language
English
Publication date
2018 (November)
Keywords
construal conflict of interest discourse information context model discourse space
Published
Bern, Berlin, Bruxelles, New York, Oxford, Warszawa, Wien, 2018. XII, 292 pp., 38 fig. b/w, 3 tables

Biographical notes

Yunfeng Ge (Author)

Yunfeng Ge, PhD, works as a teacher and researcher in the School of Foreign Languages, Shandong Normal University, Jinan, China. His research interests include forensic linguistics, discourse analysis, genre analysis, and cognitive linguistics, on which several international publications were focused.

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Title: Resolution of Conflict of Interest in Chinese Civil Court Hearings