| For the judgment of contract dispute, the judge no doubt hears the case centered on the contract (text), and when a contract is valid, the judgment of dispute by the judge needs to be built on the basis of the contents of the contract. It can be said that the contract (text) plays an important role in the contract dispute judgment. However, what is the real meaning of the contract for judgment? In judgment, through what channels and processes the contract gets the position of major premise of "the foundation causing the legal effect"? This issue has long been neglected in our country’s science of law, and the neglect leads to the loss of the significance of will autonomy and contract text authority in judgment, which makes stipulation and limitation on the judge’s power in contract is largely missing; and more seriously, this will potentially create space of emergence and spread of judicial randomicity in contract dispute judgment.Based on the perspective of the source of law theory with the judicial standing, this dissertation systematically researches on contract in judgment, and probes the channels for contract entering judgment and the process to major premise. It’s expected that will autonomy and contract text could establish the authority in judgment through the source of law theory, and thus to provide some technical level (or methodological level) support for the objectivity of contract dispute judgment. Generally, this dissertation focuses on our country’s civil contract dispute judgment, but in analysis of some detail methods or rules, some judicial experience of common law countries is also used for reference.The main point of this dissertation is that contract is the source of law in the judgment. Contract being the source of law provides a channel for contract into the judge thinking and judgment process, and this channel makes separating judgment major premise and minor premise possible, thus judge can obtain the clear path of thinking and the determined judgment methods; and further the legal methods closely linked with the source of law inevitably make judicial restraint the theme in the judgment. This will drive judgment toward objectivity, while express the modesty and restraint of judge in front of "private legislator" and autonomy of will. The personal authority of contractor in the contract text will get recognition and respect, whereby the private law idea of autonomy of will in the judgment has the possibility of being practiced.Besides the Introduction and Summary, this dissertation includes six other chapters. The first three chapters mainly expound the position of contract in judgment. And the last three chapters mainly discuss the judicial application approaches of contract serving as the source of law in judgment. In the Introduction section, the dissertation puts forward the study topic, outlines the study object and intention, summarizes the domestic and overseas research status, briefly explains the research significance and innovations, and gives necessary instructions in advance on the standing and context of this study.Chapter I expounds the connotation of the source of law and the legal nature of contract. (1)Based on the position of justice, this chapter makes theoretical analysis on the meaning and function of the source of law. Rather, this source of law is essentially judge’s source of law. "Law" in the source of law is the juridical reason (i.e. judicial norm) constructed by judge for the case in the judgment process, which is on the one hand subject to the constraints of forms of the law, on the other hand full of the judge’s individual interpretation and construction of the law. "The source" in the source of law is the argument information which is used for justifying and rationalizing the description of constructing the juridical reason. The source of law is the authority reason used by judge for constructing judicial norm and getting judgment premise. In the judgment process, the source of law will constitute the place where judge discovers law in the case on the one hand, and becomes the object of the judge’s interpretation of law on the other hand. Therefore, the function and methodological significance of the source of law in the judgment process is to promote the judge generate the judgment basis through the logical way to reflect the legitimate discretion of judge. The source of law is to regulate the trend of judge’s thinking, while also to provide fully the legitimate and reasonable support for the case, restricting the judge to making judicial decisions arbitrarily as possible, thus promoting the judgment toward objectivity. The meaning and function of the source of law decide it would put "legal pluralism" from the perspective of judge as the premise, namely the source of law is the law in the eyes of the judge. The source of law in general can be divided into formal ad informal law, and the common features are judicial application, authority and rationality. (2) Based on the theory of the source of law, this chapter interprets and explains the legal natures of contract. Just because of the legal nature of contract, nor the contract is mere the evidence presented by the parties as the facts emerged in the judgment process, its added significance is the role of law it plays in the eyes of judge, which is the source of law in theory. Therefore, the system of the source of law includes the contract, it means the contract is the one of the important places of the judge discovering law and the authority reasons to construct the judgment premise. However, the contract as the source of law needs the specific occasion and scope of application, that is, the contract as the source of law is not a general proposition out of context. It will be suitable on the specific occasions of civil contract judgment with the contract text and in the process of constructing judgment major premise.Chapter II expounds the inevitability, possibility and conditions of the contract serving as the source of law. This section mainly resolves why the contract is the source of law and under what circumstances the contract is the source of law. This chapter elaborates these issues from three aspects:(1) The contract as the source of law is not just a simple selection of terminology, but more importantly because the source of law in the judgment process has the methodology function and the practical significance of judicial restraint which establish the authority to contract text. In this authority, the autonomy of will as the private law principle and spirit is respected and honored. Therefore, autonomy of will has been converted from the concept to the judicial practice. In other words, the contract as the source of law is the necessary selection in the contract judgment and the logical point of the whole judgment process. Overall, the contract as the source of law is the inevitable need for practicing the concept of the source of will, respecting for the legal system, regulating judicial discretion and judge treating properly a verdict. (2)The reason why the contract can be the source of law is that on the one hand a contract with legal nature has the basic characteristics of the source of law from its own level, on the other hand exploration of the meaning of contract is operational from the level of legal method application. For these reasons, contract becomes eligible for the source of law, and gets possibilities in reality. (3)The contract as the source of law requires certain conditions, and only when these conditions are met, the contract will be able to obtain the status of the source of law. First, the contract as the source of law requires certain preconditions setting, that is it must enter into the judicial process to obtain the context conditions; must be manifested in the form of text to obtain identifiable conditions; must be connected to the general law to obtain conditions of validity. Second, the contract as the source of law also needs to have some rationality, whose elements can be examined from the formal rationality and substantive rationality. The formal rationality of contract refers to the contract requiring some special requirement and specific issues in its expression of fonn, which essentially is the issue related to the formalism and consent doctrine of contract. The substantive rationality of contract means that the rights and responsibilities between the parties of contract are in equilibrium that will lead to the result of fair. This is the formal conditions and substantive conditions for the contract as the source of law.Chapter III mainly discusses the position of contract in the source of law. This section is Statute System oriented, and the core argument is that contract is positioned in the lowest level of legal hierarchy in the formal source of law. This argument is expounded as follows:(1) Overall, the source of law as the judge finding law places can be divided into formal source and informal source. The features of formal source of law are the "nationality", "probing law inside the law" of will property, and setting the power of coerce as its supporter. Based on this, this dissertation argues that the contract is positioned in the scope of formal source of law. Because the contract is essentially similar with the norm in formal source of law, and it is same as the national laws that can be deduced by a certain standard logic in the formal source of law system. Specific to the field of private law, based on its internal spirit and operation mechanism of "private autonomy", the civil law shall be subject to civil society. But the subject act in the civil society is also subject to the civil law that is made by the state and guaranteed by the coercive power, so the realization of private law spirit needs to be with benefit of the nation making "private law". From the configuration constructure of the private law norms, legal act plays technique importance on the systemaltization and logicaliztion of the private law norms. Through abstract of concept it makes private law norms into a "scientific expression" system, connecting contract with other national logics of law, being a member of the formal source of law. (2)Within the formal source of law system, contract is positioned in the lowest level of legal hierarchy. For the Statute legal system, statute takes a key position in the formal source of law, and making legal norms is a system with high and low legal hierarchy. Generally speaking, the lower the effectiveness of a norm document, the more detailed of the contents are. If a country’s domestic legal system may be thought of as a "pyramid" structure, then the Constitution should be located on the top of pyramid, while what in the most low-end are a lot of contracts made by privates based on self-government legislation, because only the parties themselves know best what they want to do. In private autonomy space, they play a similar role of law that can guide the individual’s behavior and maintain order by the force of rule in society. (3)In addition, this section discusses the relationship between contract and the other source of law. The relationship between contract and other formal source of law can be understood as the relationship between higher law and lower law. From the legal hierarchy theory, the high hierarchy legal norms over the contract have control power on the contract of low hierarchy. That is, the high hierarchy legal norms can determine, alter and annul the low hierarchy contract. When the low hierarchy contract contradicts the high hierarchy legal norms, it will be changed or revoked. The relationship between contract and informal source of law is actually the relationship between contract and morals, customs, public policy, etc. Under normal circumstances, the validity of contract cannot be denied by an informal source of law, unless the application of contract will result in essentially unfairness and injustice. But by this time, the informal source of law must bear the "necessary and sufficient" argument responsibility to deny effect of contract. Moreover, informal source of law can control the validity of contract through the legal principles or the "general concepts". When the contract is inappropriate, unclear and ambiguous, the informal source of law may amend or determine the contents of contract; when the agreement of the parties is out of contract in some aspect, the informal source of law can play the role of complementing the loopholes.From Chapter IV to Chapter VI, this dissertation discusses the detail application and practice approaches of the contract being the source of law in judicial judgment. Chapter IV is mainly about judicial recognition of the contract serving as the source of law, which is also a logic start point of the contract entering into judgment major premise. Contract recognition is that when the judge faces contract disputes, he recognizes and determines the nature of the contract, thus to confirm if the contract could serve as the source of law in judgment, and thereby to find the norm (incl. general norm and specific norm) applicable to the case from legal norm system. This section mainly includes the following issues:(1) The core of contract recognition. The factual behavior in society is found abundantly, but not all can be given legal significance. Typically, only the actor’s behavior is with specific elements, it can enter into the legal scope, becoming legal act of legal significance, and further becoming individual norms. During the connection process of the "factual" act and "normative" contract, the core element is the actor’s declaration of will, i.e. the declaration of will connects the social act practice (contracting act) with the legal act abstract (legal act), thus convey a normative meaning. Therefore, the core of contract recognition is identifying the declaration of intention. (2) The normal approaches of contract recognition. Because a legal hierarchy system sets the source of law orderly, and guarantees the source of law a prudent and consistent structure in the whole, it provides the judge with a general thought direction and way of finding laws. Under the principle of legal finding that the formal source of law is superior to the informal source of law and the higher law is superior to the lower law, the judge first of all needs to follow the general order to find a contract, that means the contact should be found before the informal source of law and the general law. (3) The abnormal status and special treatment in the process of contract recognition. After the judge found a contract through the normal approaches, he must determine whether a conflict between the contract and the higher law or abnormal status exists in the source of law system. This requires that the judge constantly coordinate and handle the relationship between the contract and the higher law in the source of law hierarchy system in the process of legal finding, as to handle in time the validity of contract conflicting with the perpptory norm. (4)The text integration of contract recognition, related to the question of the contract recognition scope. That is, can the additional documents or supplementary agreement presented by the parties out of contract be included within the place of legal finding to enter the judge’s vision? In this regard, the judge should determine whether the integrity is this contract, so to the integrate contract as the source of law access the process of judgment.Chapter V discusses the interpretation and construction of contract in the process from the the source of law to the judgment major premise. In essence, the contract interpretation as the legal interpretation still has the basic characteristics that can only be an effective interpretation made by the judge. As the contract should be a manifestation of autonomy of will, the judge’s interpretation of contract might result in the tension between judge’s power to interfere and autonomy of will. However, the contract as the source of law provides a possible way for solving this problem from the methodology. Because the function and significance of contract being the source of law in the judgment just stress the authority of contract text as the legal text, the will of contractors as the authors of contract text should be, like the intention of legislators, respected as much as possible. The judge must follow the objective spirit to interpret the contract in manner of respecting the contract; in anti-words, the respecting of judge not only stem from the requirement of the principle of autonomy of will, but also strengthen this principle. For the status of contract as the source of law, the goal of contract interpretation is to construct the judicial reason (i.e. judicial norm) for a case, in order to prove the rationality and legitimacy of judgment major premise, and proving the true meaning of parties is only a way to achieve this goal. As contract interpretation is essentially to construct the judgment major premise, the nature of contract interpretation is undoubtedly a legal matter. Thus, the contract as the source of law can account for several issues that are disputed for quite some time, such as the tension between judge’s power to interfere and autonomy of will, the goal of contract interpretation, the nature of contract interpretation. In specific methods of contract interpretation, given the (narrow) contract interpretation includes only three methods that is literal interpretation, teleological method and systematic interpretation, this section focuses on this three kinds of interpretation.Chapter VI discourses upon the benefit weight and determination of the contract in the process from the source of law to judgment premise, namely the application of benefit weight methodologically. This method can not only exclude the contract that could not serve as the source of law through benefit weight, but also play a role in contract text interpretation and explanation. Therefore, in a sense the benefit weight also could be viewed as a way of thinking that is embedded in the process of the contract entering judgment major premise. However, the benefit weight is kind of substantial judgment thinking from the results pushing back the beginning, so this method should be set run regulation. The regulations in this dissertation are saving exercise, accompanying reasons and argument rule of "doubt, for autonomy".In conclusion, this dissertation proposes the significance of contract as the source of law in the contract judgment:It can provide the objective-oriented approach and method for judicial process as much as possible, and urge the judge to remain the modesty in front of autonomy and to maintain the judicial restraint, so as to promote the judgment toward the certainty and objectivity in the visible and available program. This also determines that this dissertation be a subject to extend, because much effort and exploration for the objectivity of judgment will accompany it. However, for the issue of "contract in the source of law sense", this dissertation probably has completed its mission. |
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