Judicial Proposition Of The Residual Law-making Power In Financial Law

Some factors,e.g.social progress,economic development as well as the articles of law with their own inherent limitations etc.,have made it inevitable that the statute law has revealed with its disadvantage of incompleteness.Maybe such phenomenon has displayed differently in the various departments of law,though,with few exceptions,which it is obviously reflected in the field of Financial Law.Financial innovation brings about ever-changing financial transactions,and financial deepening gives the chance of the financial development beyond tradition continuously.Therefore,the law must be required to carry out an adaptive reform to meet the need of the features of Finance,that is,constancy and change,to keep the law full of vitality and make a positive response to the era development.However,although the law is being updated and being completed,the limitations of articles of statute law and the continuous expansion between social contradictions and legal disputes have made the crack,which is existing and triggered in the financial law and the financial practice,unable to be eliminated.Such problems are testified not only in the logical deduction but also in the practice,which have representative instances by demonstration in some financial aspects,e.g.law-abiding and law-enforcing and judiciary.Therefore,in the process of the ever-changing financial phenomena,the financial law meets frequently limitations.What should it do and how could it do?Hereby,the financial law should make a reasonable definition first.Is the problem brought by the financial legislation remedied by means of the same legislative act? So,the legislative power should be made a subdivision,that is,primordial legislation and secondary legislation,to correspond to the different powers produced by the legislative acts during the different stages.It is a fact that the secondary legislation makes a contrast to the primordial legislation,which is more reflected in language.The secondary legislation is mainly the residual law-making power by nature,which is just the right way for the financial law how to deal with the difficulty,making up a deficiency of the incompleteness of primordial legislation.The relationship between the residual law-making power,produced by the residual law-making,and the primordial legislation is featured with source and branch in China.In other words,the residual law-making power derives from the primordial legislation,which determines the status and the effect of the rules caused by the residual law-making power.It is an adhering to the structure of the power distributions under the system of combination of legislative and executive powers in China,which is also a corresponding to Chinese law system more characterized by their normative documents.Thus,it is the legitimacy basis for the residual law-making power,which is a premise of being effectively operated.It is a fact that the concept of the residual law-making power is not original,nor is initiated by the legal theory in China.It is certain that the residual law-making power is not remaining in the concept layer and has stepped into the stage of practice in the relevant law-field abroad.By its nature,the residual law-making power is not new in China,which is more or less exercised by the administrative organ and judicial organ in the special scopes.It is an indisputable fact in the law operation.However,today,the concept is clearly stated and even given a special study,which is not just restating the phenomena existing in the law operation.More importantly,its new value and significance should be given in a new angle to offer an energy to promote the process of legalization.Hereby,it is indispensable to make a definition of the residual law-making power,including the generation and the discussion on the scope and the restraint.As a foreign concept,it is a must that its nature and operation rules can be profoundly understood through the comparative analysis of the operating situation of the international residual law-making power.Only by this way can the residual law-making power be fairly comprehensively understood and thus promote its effective operation better.The residual law-making power,as a law concept,should be analyzed in the level of the concrete fields of the statute law more than that of legal principles,from which the residual law-making power can obtain more powerful vitality and release greater vigor.It is a reality that the residual law-making power was put forward due to the basis on the characteristics of the operation of the financial law.So,when it comes to the discussion of the problem,the path followed should be the general to the specific,and vice versa.In terms of the financial field,the research objective of the residual law-making power is mainly rooted in the analysis of the present situation of the financial law relations subsumed to the financial law,offering the possible action for the residual law-making achieving the state of completeness.With financial property and financial essentials as the logical beginning of the study,only by understanding the financial development trends and its essentials can its rules be followed and the governance methods be sought for,and then its innermost nature be perceived.The present financial development,during whose evolution process the operation features and the value conversion can be probed into,should be scanned from the dual dimensions of financial innovation and financial deepening.Especially,the change of elements and nature of the financial law relation caused by the process of the financial reforms is a realistic necessity for the residual law-making power in Financial Law claimed,which is also the biggest motive.The concept of the residual law-making power,understood in the layer of Financial Law,has embodied its general property on the basis of which the basic concept should be classified,as well as its own specific characteristics,rooted in the field of Finance,which should be explored.From the perspective of the positive law,the current operating situation of Financial Law should be viewed,its basic logic to be combed,its generating and growing paths to be sought,and the possible progressive direction of the residual law-making power in Financial Law to be shaped in the developing and opening view.The advantages and disadvantages of the residual law-making power in Financial Law are being analyzed by the different paths e.g.supervision legislation,self-regulations,and judicial interpretation,especially combing with enhanced supervision.Under the backgrounding of the situation of “focusing on the administration and weakening in the judiciary”,the common practice is to inspect the loophole of the financial law by way of legislative supplement,which indeed fails to change its incompleteness.It is certain that the law is generally featured with incompleteness,which is also being dynamically developed.In spite of unable to make up thoroughly,it should be closing the old legal loopholes and take actions against the new cracks forming in the law and the reality as well.So,the positive role is being fully affirmed in the way of financial supervision legislation exercising the residual law-making power,meanwhile,it is needed to think and make a plan the diversion of the proposition of the residual law-making power.Compared to the financial supervision legislation,the judiciary,as the rights protection and the last line of defense,has its own advantages and characteristics in the power-active and the power-running facing up the social problems of the financials.Furthermore,the judiciary can perceive the incompleteness of the financial law more directly,and offer the choice of the judicial proposition of the residual law-making power in Financial Law.Following the characteristics produced by the different generative stages and the close observation of the cause-and-effect under the relationships of the Financial Law followed by the financial reforms,the connotation of judicial proposition should be probed into,so does its progressive choice.During the process,the open-end thinking should also go beyond the fact that the laws in China are more characterized by their normative documents.In particular,it is needed to make a creative thinking in view of the barriers existing in the case brought about by the system of the statute law in China.Therefore,according to the analysis of the situation of judicial progress,which actually exists in reality,and the judgement of the future trend of judicial operation,the forms of judicial proposition can be divided into two types——the normative-text law and the legal methodology,including written laws and unwritten law methods.Also,the realization route of the judicial proposition should not be in the limit of the expression of the normative-text law.As a matter of fact,in view of nature,the difference between written and unwritten laws is not just shown whether they come into being in the forms of normative-text,even if the countries or areas with case laws have also corresponding texts.Then,by nature,the differences between the continental law system and Anglo-American legal system should be the fact whether the legal rules regularized in advance cope with the legal relations changing in the future,including the power distributions and restraints etc.The rigid legalism under the statute law system,once a popular judicial pattern,could control the abuse of the judicial power effectively and have a good effect towards the legal control under its operation.But,it is demanded that the rigid legalism should contain not only the systematical completeness of the articles of laws but also the foresight of the articles of laws to adapt to the change in the future,which is the very reason why there exists the loopholes in the law.On this basis,with a probe into gaps of the financial transaction operation and the rules of the positive law,and by demonstration simultaneously,the incompleteness of Financial Law,which actually exists in reality,will be testified,thus to provide some evidence to improve the ideal law.In the process,the legitimacy of the judicial proposition is being demonstrated in the angles of the legal principles and the realistic demands.Great emphasis is also laid on breaking the possible existing paradox by means of breaking the old and building the new simultaneously or even in combination.The paper is paying close attention to the predicaments existing in the practice of judicial adjudication in Financial Law,which is facing up to the phenomenon of incompleteness as well.Furthermore,established in the reforms of the financial field,the dual tasks,as the last line of defense against the disputes of the financial laws,have been highlighted which the judicial department is facing to solve the financial disputes and shape the order of financial laws,especially to offer professional protection for solution to the new type of disputes of financial laws.This paper,based on the logical sequential and practical argumentation as the question-raising and oriented by the need of problem-solving and the development-demanding of the Financial Law,has made a reflection whether the positive law can be acted to undertake this important task,or how to better satisfy the need of economic-social development for the Financial Law.Compared with the tradition of judicial adjudication in Financial Law,it is obviously needed to stress its professional characteristic beyond the legal knowledge,whereby solving the disputes of the financial laws effectively and then bringing about the effective and fair trial,which is just the way in which the normative-text law and the legal methodology achieve the goals of combination and elaborate division.It is obvious that financial law should go beyond the existing articles of law since it wants to cover the legal relations in reality,which should promote the parallel of the laws and precedents and pay equal attention to the law text and the legal thinking by means of the judicial proposition so as to cope with the past,base on the present and face up the future and to offer the sufficient legal evidence for the ever-changing financial activities.Considering the ideas mentioned above,the dissertation,attempting to be engaged the judicial proposition of the residual law-making power in Financial Law by means of the logical argumentation,is divided into five chapters with the exception of introduction and conclusion.The introduction mainly sets forth five aspects,including the significance of the theme,literature reviews,writing ideas,research methods and major contributions.On the basis of expounding its basic concept,Chapter One defines the scope and the restraint of the residual law-making power,analyzing its generation.Meanwhile,in comparison with the residual law-making power operated in the two continental law systems,this chapter,with the two dimensions of logic and reality carrying forwards simultaneously,mainly introduces its basic meaning and its operating logic,explaining its connotation,its generation and its operating foundation and analyzing its arguing motive and its logic of existence.By casting the concept of the residual law-making power against the field of finance,Chapter Two analyses not only its specific meaning and value brought about by the concept of the residual law-making power in Financial Law,but also the value produced by its judicial proposition,and then in terms of the positive law of finance,makes an analysis of the present situation of Finance Law in China and the possible progressive way in the future,and offers the solution to breaking the corresponding paradox so as to lay the foundation of its corresponding proposition.Chapter Three,from the perspective of the possible implementation of the residual law-making power,makes a comparison of the different characteristics embodied in the different ways of exercising the residual law-making power in Financial Law,carries on an analysis of their strengths and weaknesses respectively,focuses on their respective operating basis and operating condition,makes a contrast to the legislative types,the stages of financial development and the problems needed to be striven to be solved in the problem-oriented and demand-oriented process,and offers an analysis of the motives and the reasons needing attention in the process in which the judicial proposition is practiced in the exercise of the residual law-making power in Financial Law.With the connotation of judicial proposition echoed by the idea,Chapter Four deals with the quest for the ideas of Financial Law adapted to the financial development,fully combining the features of Finance——constancy and change.The law,as a means of an adjustment to the realistic relationship,is often used to be a dependent variable to make an adjustment and operation,so is in the Financial Law.Also,in view of the fact that the laws in China are more characterized by their normative documents,it is needed for them to be adjusted in the framework of the statute law.However,the idea of changing within the limit of the law is exactly the way to reconcile the contradictions between the stability and the variability of Financial Law.On the basis of upholding the spirit and the principles of Financial Law,it is made to respond to the financial changes and the need of the solution to the financial legal disputes,consequently,to offer the thinking factors of judicial implementation of the residual law-making power in Financial Law and its development as well.From the angle of the specific implementation mechanism,Chapter Five makes an exploring how to search for the implementation mechanism of the residual law-making power in Financial Law,based on the basic framework of the statute law.On the basis of following the legal tradition and the rules of judicial practice,involved in the three dimensions——the legal methodology,instructive cases and judicial interpretation,especially through the emergence of the professional tribunal in the financial court,this chapter has a discussion on deepening the traditional approaches of the legislative power exercised by the judicial authority,which aims to bring new value and vitality to the judicial interpretation and the application of instructive cases.Furthermore,this part tries to probe into the various legislative channels of the legal system introduced in the specific legal field,forming the complete way in which the Financial Law is suitable for the practice in China.