The Study Of Balancing Of Interests In The Judicial Process

Balancing of interests which is known as the "golden method" is key to a judge's correct decision and is attached great importance. The application of it has become a common trend all over the world. From the perspective of all over the world, the study of the balancing of interests has formed matural theories and shown its significant academical and practical value. On the other hand, in this field there are still many theoretical problems which need further research to improve the legal method and make full use of it in practice.Chapter 1 is about a brief introduction of academical groups and viewpoints in the history. By doing this, we can grasp the macro-theoretical research in this field and know the achievements of existing research and the problems which need further study well. Balancing of Interests is a legal method which is proposed by Heck and develops from the interests of law in the early 20th century. Generally speaking, Heck took a compromise position in the interests of law, and he not only criticized the concept of law but also was opposed to free law. He focused on the stability of the law and the proper nature of individual case. He established the theory of balancing of interests and form a complete theoretical system of an inclusive concept of interest, benefit measurement applications, benefits and operation methods to measure.He has made a very important contribution, but the theory there are also some shortcomings and even Pound's sociological jurisprudence reveals differen interests and carried out detailed classification of a variety of interests as well as the discussion about how to coordinate the various conflicting interests of the evaluation criteria is of great significance.The most outstanding contribution of Pound's theory is the encyclopedia-style classification system of intersts which has a profound impact as reference.The balancing of interests is regarded as the the highest point of development of the mainstream method to the interpretation in Japan and the theoretical base of its interpretation of Japanese civilian law. It is the leagal methodology with Japanese characteristics and helpful for Japanese scholars to solve the leagal conflict between the law and actual society in Japan. In China, the study of balancing of interests was proposed by Mr. Liang Huixing in the 90's of last century and has made great progress, but on the whole, the study is still in its early stage. The academic community has made significant achievements of the study as a whole, but it still faces the problems such as the creatia of balancing of interests of the measure and how to avoid the arbitrariess of the judge.Chapter 2 is about study of the basic theoretical issues, including the explaination of the basic concepts, the classification of interest and the inevitability and principles of balancing of interests. Analysis of the basic concepts of interests is the most basic work and the theoretical circles have different ideas of the interests. The basic idea is to explore the basic characteristics of interests, the constituent elements of interests. There are similarities and differences among the interests, legal interests, leagal rights and rights. Balancing of interests is the core point and it is different from value measurement in the measurement direction, awareness level, measurement methods. Balancing of interests and considerations of interests are similar in the concept and different in the emphasizing part. The interests can be defined as leagal interests and interests beyond leagal, the specific interests of the parties, group interests, institutional interests and social public interests; homogeneity of interests and the interests of the non-homogeneity.Balancing of interests is regarded as a legal method because it is helpful to improve the legal methodology and leagal practice. The principle of balancing of interests is the basic criteria, and the principle of legality is the constraints to judges'arbitrariness, which is basic requirement for the rule of law; the direct target of balancing of interests is to maximize the interests; the principle of legitimate incentives cases from the judges reveals a more deeper meaning; while the principle of judicial restraint reveals the needs to protect the law and the method of balancing of interests.Chapter 3 focuses on the operation of balancing of interests, including applications and measurable benefits, benefits and measurable standards and method of operation. The applications of interest is the promising question and involves the scope of application of sectoral laws, the frame of balancing of interests. As a legal method with universal significance, balancing of interest is not only applied to areas of civil law, but also applied to other areas of the various sectoral laws with different methods. Balancing of interests can be applied to the field of law and can not be used in the field outside the law. It is applicable to difficult cases and to simple cases as well, but the two have different aims and methods of measurement.The crietia of balancing of interests is the core issue. As an ideal standard mode, the crietia should be the combination of reasonable substance and lawful forms. There should be steps as following:interests identification, legal interpretation, interests selection and correction, legal grounds accompanying.Chapter 4 focuses on the empirical analysis and specific operation. The study of operational rules has great significance in the theory of balancing of interest, and only a relatively complete set of operating rules can make balancing of interest significant and valuable in terms of methodology. In the judicial process, the objectives of balancing of interest should be the legal and acceptable verdict that can achieve maximum benefits within the legal framework. The operational rules in the verdict of hard cases mainly include 1,rule of maximization of resource utility, that is, the hard cases in terms of property disputes should be a choice to maximize the effectiveness of the contentious property; 2,rule of minimization of losses, namely, the cases among which two kinds of conflict of rights can not be reconciled and the loss is inevitable should seek decision programs that can make the overall loss smallest, that is, the greatest program that has the greatest difference between the benefits and loss of the two parties 3, rules of validity of allocation of responsibilities, namely, the party which has favorable conditions to avoid the loss should shoulder more responsibility in the hard cases that the loss can be avoided; 4, rule of maximization of the marginal utility, that is, if hard cases in which the ultimate ownership of property is difficult to clear, the verdict should choose the distribution program that has greater marginal utility of property. Rule of maximization of the marginal utility, as a supplementary rule, is effective only under strict conditions; 5, rule of proper incentive, that is, the verdict in a hard case which has a major impact on public order and good morals of society should create proper incentives for the community. In easy cases, however, the scope of application in balancing interest is only vacant structures of the rule of law, mainly taking the form of discretionary power of judges, whose goal is to seek the optimal solution to protect the interest. To achieve the above ideal state, judges are required to make the right strategic choices in the perspectives and operational methods. Judges analyze the problem in an outsider perspective, and adhere to the principle of "absolute rejection of self-interest"; in the specific operation, judges are required to use "inaction" strategy, that is, they are completely subject to the final results derive from relevant requirements of the rules.Chapter 5 is about the remaining problems. One of the core issues is the criteria of balancing of interests which has not been solved yet. The German interests in jurisprudence, the United States Pound incommensurability type of interests, the Japanese interests measurement, and he relevant studies in China have not found an effective criteria which has been generally accepted. The more feasible idea is to seek case-specific, system-based, substance reasonable and legitimate form of unity and to the best judicial decisions, results-oriented metrics, but this is only a kind of exploration. How to prevent the judge's arbitrary measure of interest is another study of theory and practice. Problem-solving requires three efforts:First, to strengthen research, and strive to build for theorists and practitioners agree that the interests of the measure theory; second is to improve the quality of judges, to develop their ability of the theoretical level and practice; third, to establish the monitoring mechanisms. The legality of balancing of interest is also a problem of theory and practice. Balancing of interests must strike a balance between the legality and legitimacy in the framework of law. Overall, balancing of interests is of great theoretical significance and practical value in our country because of because of its advantages and the match the needs of the judicial practice of China's nature.