Study Of The Judicial Application Of Thelegal Principles In China

Based on the requirements of the rule of law, the judges have the obligation inaccordance with the law,that is to say, the judge should strictly abide by legal normswhen reasoning to make legal judgment when disputing the rights and wrongs.Due tothe unique behavior pattern of the legal rules and the logic structure of the legalconsequences,the judge will first apply the legal rules as the major premise ofruling.Because of the changing of social life and the limitation of cognitive ability oflegislator,there are always some cases that cannot be covered by the existing of legalrules.Dworkin puts forward the famous idea of the legal principles theory by pointingout that the legal pinciples exist in the hard cases,introducing the legal principles injudicial practice.European scholars focus on the legal principles in the practice of thespecific judgement and inference, and discuss the function of the legal principles tomake up for the loopholes. On account of the fact that the legal principles arewidespread in the law of our country, the legal principles can certainly be applied injudicial practice.In the context of constructing the country under the rule of law, judicialimpartiality must first embody the legitimacy and acceptability of the court’sjudgement,especially when legal rules can not be used,how to correctly apply thelegal principles to safeguard judicial justice becomes more urgent. The judicialapplication of the legal principles not only can satisfy the objective of the rule in theempirical law system, but also can realize the pursuit of justice in the individual cases.Throughout the courts at all levels, all kinds of cases applying legal principles in rulingare not in the minority. Nearly thirty years, the judges in our country use the legalprinciples to rule a number of cases in the judicial practice. For the research of theapplication of the legal principles,these cases are worthy of attention and excavating.Based on the " Supreme People’s Court Bulletin" of1985to2010, we take theapplication of legal principles of typical cases as sample to compare, analyze and discuss the present situation of the application of the legal principles from the fivedimensions:the ratio, the case type, the type of legal principles, the situation, theappeal rate and the amendment rate. We found out two basic characteristics when thejudges use the legal principles in the judicial application：presenting two trial ideas,namely the activism and the legalism, and creating a new mode of judicial "Law-making ".Then we reveal three major problems in the judicial application of legalprinciples：namely the judicial application of the legal principles has the tendency ofarbitrariness, and the judicial application of the legal principles has a negative effect onthe stability of law, and the judges present polarization seriously in the arguments ofthe judicial application of the legal principles.On the basis of summarying problems,this article analyzes that the main reasons of these problems lie in three aspects: thejudge has mistaken explanation and misapplication in the theory of the judicialapplication of the legal principles,and the abstractness and fuzziness of the legalprinciples hinders the judges to apply the legal principles correctly,and the lack of thejudiciall argumentation and the type spectrum of cases makes the legitimacy of judicialdecision difficult to achieve in the judicial application of the legal principles.Throughthe above analysis, I put forward some suggestions in the theory and the practice toperfect the judicial application of the legal principles in the future: expurgate thetheoretical contexts of the judicial application of the legal principles,and improve thelevel of the judicial trial, and construct the type spectrum of cases,and strengthen theargumentation of the judicial application of the legal principles, and strict with theprocedure of the judicial application of the legal principles.This article focuses on the role the legal principles play in the judicial practice inour country, and also focuses on how the judges apply the legal principles to remedylegal loopholes when the rules are in blank or conflict and when the rules are vague orparadox. In the meantime,this article compares the classic cases made byAnglo-American law system and Civil law system judges using legal principles tosupplement the loopholes. The human rights is the core of the rule of law.Under thebackground of respecting and safeguarding human rights,the judges apply the legal principles to safeguard human rights positively, not only can bridge the gap betweenjudicial ability and social demand, but also can improve and develop law. At this point,the judges are not only the people who apply law and the supporter of the social order,but also are the defender of human rights and the implementer of social justice.As to be limited to the setting of the topic in this paper, the basic method is basedon the empirical analysis method to analyze and explain the judicial application ofthe legal principles,with the actual social utility and legal effect as the aim of thinkingthe judicial application of the legal principles.At the same time,I take the comparativeanalysis method, through comparison and draw lessons from western (mainly Civil lawsystem judges and Anglo-American law system judges) classic cases and ripeexperience by the application of the legal principles, to search direction for restoringthe judicial application of the legal principles.Based on the analysis method of casesusing the legal principles, this article integrates the use of individual case study,typecase study and case statistics study.With the help of the sample representativeness, itensures the conclusion credibility. This paper not only can observate the supremepeople’s court for fitness with the legal principles, but also can be more comprehensivedescription of the legal principles in the judicial practice, and can further summarizeand extract the experience, knowledge, skills, and the judicial wisdom that the judgesdisplay when applying the legal principles to trial.This can make the legal principlesresearch more practical and targeted, and more closely to the judicial practice.And itcan enhance the consciousness of researching the problem of the judicial application ofthe legal principles.Looking from deeper,the judicial application of the legal principles in the final isa matter of legal culture.The transplantation of the legal system is not difficult, but thefit of legal system’s values and social values is even more crucial. This needs quite alot of education. At the same time, we need to research and improve the applicableconditions of the legal principles so that they can continue to develop with the rule oflaw to form a just, reasonable, complete and properly and clearly identified social idealstandard system,and to improve the overall understanding and respect of the normativesystem of the judges. We also have to create the corresponding system and procedure to facilitate that the judges can flexibly apply all kinds of legal resources to tackle thenew disputes to make up for the defect of the law and to prevent judicial error.