A Study Of The Method Model Of Application Of Legal Principles

The aim of this article is to try to find the application model of legal principle. For this purpose, this paper will focus on the problem by five chapters. First of all, it is necessary that to make a definition of legal principle, because this is fundament of the application of legal principle. The second, to make a research on fields and conditions of applications of legal principle. The third, to make a research on the method of type to the application model of legal principle. The fourth, we will focus on the method of balancing. The fifth, the conclusion of the paper is that the application model of legal principle should be the model of type-balancing.In chpter1, we will focus on the definition of legal principle. First of all, we make the definition of legal norm, the meaning of normative statement, according to the semantics. In the same perspective, legal principle is a kind of optimization commands, which is different from legal rule. The most important difference between legal principle and legal rule is different prima facie character. In addition, the both are different reason type. Legal principles are content-dependent reasons, and legal rules are content-independent reasons.In chpter2, we will mainly focus on fields and conditions of applications of legal principle. First of all, we make a distinguish between fields where legal principles could work and fields where legal principles could be individual norm. Legal principles could work throughout the whole judicial process. Legal principles as individual norms are generally applied in hard-cases. There are two kind of circumstance in application of Legal principle, In the first kind of circumstance, there isn’t rules, then(1)could apply the legal principle, if there is only a legal principle; (2)apply either of legal principles by the balancing, if there are two opposite legal principles, In the second kind of circumstance, there is a rule, then apply the legal principle by balancing with the rule if the application of the rule can result in unjust results. Secondly, we make a research about conditions of application of legal Principles, including probability conditions, preconditions, restrict conditions, and essential conditions. In chpter3, we will mainly focus on the method of type. Firstly, the process of application of legal Principles is a concretized process, which is realized by the method of typification. Secondly, we make a further research on characteristics, applicable way, role of the method of typification in the application of legal principles. Thirdly, there are two ways of typification of legal principles, induction and concretization, but the both way could not be separated. Otherwise, they are banded together. Lastly, we take principle of right of privacy as example to show how to typificate legal principles.In chpter4, we will mainly focus on the method of balancing. Firstly, the method of balancing is necessary to the application of legal principles, because the method of type’s hysteresis and couldn’t solve the conflict of legal principles. Secondly, we make an analysis of the advantages and disadvantages of German model and America model by comparison with the two models. And we an outline of the method of balancing. Thirdly, we take constitutional right norms as legal principles as example to illustrate how to apply the method of balancing.In chpter5, we will mainly focus on the model of type-balancing. Firstly, we make a research about society and theory background of the appearance of the model of type-balancing. Secondly, we focus on the role of the model of type-balancing in application of legal principles, which could not only solve the method of type’s hysteresis and the conflict of legal principles, but also solve uncertainty of the method of balancing. And we relate and analyze the characteristics of the model of type-balancing. Thirdly, we focus on the applicability of the model in China context, which is tested and verified by the typical cases.