The Judicial Application Of Legal Principles

In the sense of Legal Philosophy and Jurisprudence, legal principles refer to the basic truths or principles of the law, or to the comprehensive and stable principles and norms providing basics or originals for other laws. However, whether it can become an effective norm to be quoted by jurisdictional judgment often arises many debates even some suspicions over its legality.Along with the development of the law practice since the last century, especially the arguments over some famous cases as well as the spiritual conflicts among scholars, people have increasingly realized that "the legal principles" definitely stipulated in the statute law possess the effects regulated by the positive law. The direct application of it can not only compensate the deficiency of the statute law, but also enlarge the legal basis to solve social disputes by the law. For China, a country advocating the traditional statute law, the main basis for judgment comes from the positive law, but whether the legal principles can be applied directly is an issue which has been neglected for long. Nevertheless, with the dramatic changes of Chinese society and the development of law practice, to solve social contradictions by more comprehensive means like the law has become increasingly striking, and to tackle practical problems by the application of legal principles has become a consensus.The two famous cases--Riggs v. Palmer and Luzhou bequeath case, leads to four aspects including whether the court can directly apply the legal principles as the basis for judgment, how the law basics imply, what are its limitations and what about its future. We think, the legal principles can be applied in judicial judgment on the basis of security and unity of law with necessary limitations.From the angle of jurisprudence, the paper elaborates the general rules of the legal principles and analyses some theoretical issues like its definition, qualifications, the ways of being discovered, its state and effects. Then it addresses the basic theoretical logic of legal principles, introduces the academic viewpoints of famous experts at home and abroad, makes a simple review over the history of the application of the legal principles and analyses the basic situation of applying those principles in cases in the main legal countries. At the same time, it analyses the practical problems and theoretical dilemma confronted by the application of Chinese legal principles by case study. It maintains that legal principles can merely assist the application in judgment and should define its limitable prerequisites, preferential conditions and prohibitive rules.Theory comes from practice and cannot survive until it serves practice. The paper focuses on the current practice of the judicial application of Chinese legal principles at the last but not the least part, establishes four systems and their respective solutions-the balance between the law and interests through cases, accurate deduction and explanations, the founding of reasonable programmed scheme and the nursing of internal spirit of judges. Finally, it comes to the conclusion that we should tolerate and encourage the judgment by principle, dispel the possibility of abuse as much as possible, and construct a system step by step to deal with disputes with the balance between rules and principles, which thus makes legal principles play a better role in solving social contradictions, safeguarding justice and rightfulness, as well as promoting social harmony.