Study On Application Of Legal Interpretation Rule

In the continental legal system,the rules of legal interpretation is not completely equal to the legal interpretation methods,they refer to how to apply different kinds of methods and the coordination standards between conflict methods.The problem consciousness of the study on legal interpretation rules comes from the reflection on “the difficulty in the application” of legal interpretation or interpretation methods.In nearly thirty years' study on legal interpretation,we have developed interpretation “method system” mainly includes literal,system and teleological interpretation methods.But these methods still follow the abstract path of theoretical research,not only lack of realistic concerning about legislation,judicial interpretation,judicial cases and the context of judgment,and are difficult to provide a simple,clear and feasible “referee standards”,which is just the judge on the front mostly demanded.Specific to the judicial judgment,“complete interpretation methods”does not directly lead to“methods' realistic application”.How to effectively combine double thinking of system and problem,to explore and summarize the applied standards from Chinese practice of legal interpretation,and then guide and regulate judge's behavior,become the key of realizing the goal of “the legal interpretation theory guiding practice”.The study of the application of legal interpretation rule is not a purely judicial operation lacking or false of theory,the theoretical basis and feasibility of the theory is mainly manifested in three aspects: First,legal interpretation rule is a practical concept itself.As a applied standard of interpretation methods,legal rule is not purely legal norm or a mandatory “order” of institution,but a thinking “guidance” to action of judge and a judicial expression of Hart's “rule of recognition”;Second,legal interpretation rule has a specific basis of produce,which is directly derived from and guide the judicial practice.On the rule produce,draw lessons both from Anglo American law rules,such as “literal rule”,“golden rule”,“mischief rule” and other specific rules,and from our country's specific sources,such as legal applied rules and requirements in legislative text,judicial interpretations and other normative documents,the referee points and methods in published typical cases,effective referee methods in current judicial experience;Third,legal interpretation rules also have specific applied types,and in different legal systems divided into form and substance.The former view from legal interpretation,legal argumentation and other methods,mainly includes linguistic interpretation rules and structural interpretation rules;The latter view from the result of methods applied,mainly includes semiotic interpretation rules,system interpretation rules and specific requirements.The practical application is the basic characteristic of the legal interpretation rules,and the main purpose of the research is also to study the application,and to focus on the problems and solutions in the application of rules.Viewing from the current practice of interpretation in our country,the applied problem of legal interpretation rules are mainly manifested in three aspects: First,the classification standard of legal interpretation rules is not clear.As the different interpretation methods applied standard and conflict coordination rules,legal interpretation rule expressed as a suit of integrating rule system.If the classification is not clear,the standard is fuzzy.The clear classification has become the key to realize the application of rules.Second,the applied prerequisite of legal interpretation rule is not clear.This is a direct reflection of the applied problem of legal interpretation rule,mainly exists in the accumulation or conflict of interpretation methods,lacking of a sequence of “meta rules”or the standard of choice.In addition,the unclear prerequisite also includes the vague of application of specific interpretation method,such as the standard of different literal interpretations.Third,conflict between the existing interpretation rules.This kind of conflict is in the depth of interpretation and is widespread,and even there is a view that “almost every interpretation rules have the contrary rules existed at the same time”.The reasons also come from many aspects.They directly lead to the difficulty of practical operation of current interpretation rule.Aim at these problem of application,the solution is as follows: First,choose the three interpretation methods as the basis of rule classification;Second,refine the requirements to clear the conditions for the application of rule;Third,insist on the doctrinal position to avoid conflict between rules;Fourth,the construction of interpretation rules should have practical concern.The first two focus on method the latter two position.First of all,facing the problem of classification standard unclear,current prevailing standards are interpretation institution,interpretation method,interpretation element and forms of rule of law,but they all have theoretic and practical defect.However the classification of literal interpretation rule,system interpretation rule and teleological interpretation rule(the subjective teleological interpretation mainly refers to historical interpretation rule)is not only based on a certain theoretical basis and is easy to accept for referees,what's more important is that widely used in judicial referee.Now that it is impossible to study every aspects of application of interpretation rule,grasping and dealing with this three kinds of interpretation rules is to grasp the core of entire application of legal interpretation rules;Secondly,facing the unclear problem of applied prerequisites of interpretation rule,we need to objectively understand the order of the interpretation methods.It is very difficult to proved the “table of validity order”or the “priority of prerequisites” in theory,and is hard to have practical significance in the complicated interpretation practice.More important is under the three rules' guidance of “priority”,“basic position” and “substantial orientation”,refine the standards or requirements of each interpretation method according to the specific referee context.As like the “plain literal”,“teleology can't destroy the system”,“don't take new and different interpretation deliberately”and many other interpretation rules and requirements exist in countries of Anglo American law.Thirdly,the conflict between interpretation rules is a lack of coordination between the methods on the surface,but the essence behind is the difference of value orientation of the interpreter,the position of interpretation and the understanding of the rule of law.According to the doctrinal attributes of legal interpretation and requirement of certainty,to construct abstract interpretation rules,uphold the normative doctrine position and fusion of our referee experience and judicial rule,is effective path to reduce the conflict of application.Based on this thinking of solution,the article launches the analysis from three aspects: “priority application of literal interpretation rule”,“basic position of system interpretation rule”,“substantial orientation of teleology interpretation rule” and the specific rules and requirements of application of each.This structural arrangement solves the problem of classification of legal interpretation rules,on the other hand,the expression of “priority application”,“basic position”,“substantial orientation” indicates the order guidance of application,responds indirectly the problem of applied prerequisite unclear.Specifically,the main purpose of the literal interpretation rule is to solve the priority problem.Whether it is between literal interpretation and other interpretation method,or the choice of literal interpretations inside,the standards and requirements are both related to the priority.In the former,the most basic explanation is “the literal interpretation is the primary start to interpretation”,expressed as “the literal meaning is the spirit of law”,“black can't exceed red” and “clarity rules”,“directive rules”and other legal proverbs or rules.Facing specific cases,there are exceptions to priority of literal meaning,such as welfare grant,weak protection,public interest.In Anglo American law countries,these exceptions of interpretation rule expressed as “absurdity canon”,“there is no precise definition of law but depend on the judgment of good man” etc;In the latter,the priority rule is embodied in the choice of general meaning,specific meaning and legal meaning of the uncertain legal concept.Among the three,“legal meaning first”is a basic rule of interpretation,the exception is that “the legal norms can not protect the maximal interests of the people”.The choice between general meaning and specific meaning mainly rely on “the ordinary meaning rule”,unless it leads to ridiculous result or the term has a specific meaning.The system interpretation rule is also known as “golden rule”,because of its basic position of three rules.Its prerequisite are embodied in two aspects,one is the external that “apply system only after literal meaning exhausted”,the other is internal that “logic elements prior value elements”,it can also be regarded as the priority of system among other interpretation methods.In interpretation practice,system interpretation rule are embodied as nositur a sosiis,whole text canon,consistent meaning canon,no surplusage canon.These specific requirements not only help clarify the literal meaning,but also make sense to solve the conflict between form and substance of interpretation rule.Generalized system interpretation rule breaches the method angle,mainly including constitutional interpretation rule,coordination rule of conflict of laws and exemplary provisions interpretation rule etc.“Superior law prior to inferior law”,“special law prior to general law”,“express one means exclusion others” etc.are auxiliary to narrow system interpretation rule,which are working together to solve the conflict between interpretation rules.Teleology interpretation rule is one kind of substantive canon,its primary coverage is handling the relationship between the two form interpretation rule of literal and system.On the one hand,teleology adds value to the literal and system,when the grammar,logic and teleology fall into contradictions,the real intention of legislator which can be proved is priority,this is also demanded by the “mischief rule”;on the other hand,the application of teleology interpretation must meet with certain prerequisite then,mainly showed as subjective and objective teleology interpretation.Subjective teleology interpretation rule mainly refers to historical interpretation rule,handles the nervous relation among elements of literary,system,history,purpose through “legislative intent prior”,“subjective purpose assist literary and system” and “breach the literary and system when facing critical flaw”.The objective interpretation rule is according to the current context in which the legal text is situated to ascertain the meaning,which is demanded when literal meaning is deficiency or understanding is not proper.It mainly includes specific requirements such as “choose the objective purpose when literal meaning ignore social effect”,“objective purpose can't make the decision alone”,“the application of legal principles should be specific”,“consideration of judicial policy needs to have a stronger reason” etc.Combined with the existing legal interpretation theories and judicial practice,the key of research on legal interpretation of China should have a change,from the study of abstract interpretation method to the specific application of interpretation rules,and pay more attention to the prerequisites of application and standards of conflict coordination between different interpretation methods.This is also the key to realize the legal interpretation goal of “theory guiding practice”.There is no strict “order of validity” between different interpretation methods,more is composed by special prerequisites and specific requirements,including the applied rules of specific methods,the priority rules of specific interpretation,and the coordination rules of interpretation conflict,they make up a rule system of legal interpretation.At present,legal interpretation work should focus on “applied standard”,and the referee method of applying the interpretation standards and referee rules in former cases to the latter cases.