Legal Methods Research On Application Of WADC By CAS

In 2020,China put forward the historical task of building a sports power,and the perfection of sports law needs legal methods.The origin and application of transnational folk law are not entirely consistent with the traditional legal categories of domestic law and international law.They originate from private individuals and have the nature of transnational supervision.At present,there is little research on their legal method in domestic academic circles.Transnational folk law is a concept based on transnational legal pluralism,which refers to a system of rules created and monitored by global folk society.It is independent of national legal systems.Transnational folk laws are diverse and numerous,with greater flexibility,including model clauses,model contracts,transaction practices,conduct codes,guiding principles,conduct guidelines,social standards and certification norms,etc.Transnational folk law in this paper refers to the rules formulated by international non-governmental organizations or compiled and spontaneously formed by non-state private actors in the international community,which have universal binding force on community members.This paper takes WADC as an example to study the legal methods of transnational folk law.WADC is the law formulated by WADA,an international sports organization,which is independent of national law and international law and belongs to the legal rules of international private regulation.The research on it is a typical research on legal methods of transnational folk law.The research is expected to reveal some particularities of the legal methods of transnational folk law,expand the research field of legal method;it will enlighten the future sports law field to pay attention to the application of sports referee legal methods;it will seek ways to coordinate domestic laws and international rules,and protect the legitimate rights and interests of Chinese athletes or other parties;and it will explain the application of transnational folk law in the arbitration of Sun Yang’s doping violation case.Based on the empirical study of arbitration cases of CAS,this paper adopts the methods of empirical study,case study,literature,comparative study,historical study.This paper studies whether legal methods are valuable to transnational folk law,what is the particularity of legal methods of transnational folk law,how to apply legal methods of transnational folk law,and how to use legal method to deal with the conflict between domestic law and transnational folk law.This paper is divided into three sections:the first section raises questions about whether legal methods are valuable to transnational folk law,including chapters 1 and 2.The second part is theoretical research,studying what is the particularity of the legal method and how to apply the legal method of transnational folk law,including chapter 3 to Chapter 7.Chapter 2,chapter 3,Chapter 4,Chapter 5,Chapter 6 are research on the substantive rules of WADC.According to the importance of the legal method of applying WADC by CAS and the logic of progressive thinking,this paper discusses the application of interpretation methods,legal principle,loophole supplement and interest measurement respectively.Chapter 7 is the study of procedure rules of WADC.The third section is the practice research,namely chapter 8,studies how to apply legal way to deal with conflict between domestic law and transnational folk law,in combination with the comprehensive use of Sun Yang case,summed up the international anti-doping rules,conflict and coordination of China’s anti-doping rules,combining with the construction into full text studies our country sports arbitration thinking.Chapter 2,chapter 3,Chapter 4,Chapter 5,Chapter 6 and Chapter 7 all conclude the research of this chapter,comment on the application of relevant legal methods by CAS,put forward suggestions for improvement,and summarize the particularity of legal methods of transnational folk law.Chapter 1 considers that the study of legal methods of transnational folk law has the value of expanding the research field of legal methods and enriching the interpretation of legal norms.Chapter 2 finds the interpretation of transnational folk law is different from the interpretation of domestic law aiming at national will,and the interpretation of international law aiming at treaties and international customary law.It often prescribes interpretation rules and mainly interprets according to the prescribed interpretation rules.Case interpretation plays an important role in its interpretation.The interpretation of transnational folk law cannot be confined to the thinking mode,knowledge system and interpretation skills of domestic interpreters,nor can it rely on the interpretation techniques and relevant rules of domestic law.The application of transnational folk law has some characteristics different from the application of national law system,which leads to the following chapters.Chapter 3 shows that the transnational folk law applies such legal interpretation methods as literal interpretation,expanded interpretation,systematic interpretation,objective interpretation and sociological interpretation,but it has its particularity,for example,1.objective interpretation of anti-doping rules has the characteristics of the particularity of the subject of interpretation,the dynamics of interpretation and the levels of interpretation,and interpreter can not only focus on the interests of international non-governmental organizations and non-state actors in the international community.2.international anti-doping rules include main legal sources and supplementary legal sources,and their systematic interpretation is more complex than domestic laws,which can be systematically interpreted through legal norms concepts,terms,sentences,contexts,and norms hierarchy.There is a conflict between the transnational folk law and the domestic rules of the member states,the domestic rules of the member states should be subject to the transnational folk laws of high rank.3.transnational folk law is under the influence of multiple cultures,and there are some problems to be discussed in the transnational folk law.Therefore,it is necessary to examine the reasonable legality of the interpretation results of conflicts,which provides a wide space for the application of sociological interpretation methods.Interest measurement can be applied to sociological interpretation of transnational folk law.4.transnational folk law can refer to subsequent practice to the application of treaties.Subsequent practice is a kind of loophole supplement and also a method of legal interpretation.In nature,WADC is an international rule that is binding on the countries and international sports organizations that recognize it.The interpretation of WADC can be interpreted by referring to the treaty and applying the method of subsequent practice.Subsequent practice is different from other legal interpretation methods and it is the auxiliary proof of other legal interpretation methods.The premise of subsequent practice is there are gaps or ambiguities in the legal norms that are inconsistent with the reality and need to be explained.The common method is analogical reasoning,and the application approach includes three steps:other legal interpretations,seeking the basis of interpretation,and conducting legal argument.The application of subsequent practice is more flexible and can endow new content and meaning to legal norms.Therefore,legal interpreters need to pay special attention to the specific development trend of relevant practice and accurately grasp the reasonable interpretation in the current environment.In fact,CAS has carried on the subsequent practice of the anti-doping rules,established the new dispute settlement norms,and created the unique legal methodology of the anti-doping rules.In view of different objects of interpretation,CAS adopts different interpretation methods to demonstrate the jurisprudence of its interpretation methodology.Chapter 4 shows that legal principles are increasingly being introduced into the statutes and regulations of transnational non-government organizations.It can be seen from the application of legal principles by CAS that the particularity in transnational folk law is as follows:1.unlike domestic law,transnational folk law is not based on the constitution,so the basic principles and legislative purposes of each law are generally clearly stipulated,but there is no comprehensive and unified common principle on transnational folk laws.2.transnational folk law and domestic law have different conditions for the application of legal principles.CAS directly applies legal principles to case,rather than applying legal principles when the rules are exhausted,the application rules are obviously unfair and just,or the rules are vague and conflicting in China.3.transnational folk law is usually created by folk society through practice.In order to safeguard the interests of transnational non-governmental organizations or international non-private actors,the application of legal principles is selective and a process of gradual improvement,which is different from the artificial formation of the national legal system.4.to some extent,the starting point of transnational folk law to solve the conflict of legal principles is to safeguard the purposes and objectives of folk organizations or their interests.Legal principles promote the concrete application of anti-doping rules,and the practical application of anti-doping rules promotes the formation of new legal principles.Chapter 5 shows that the interpretation of domestic law is mainly aimed at the formulation law,and there are few studies on interpretation of precedents.The latter interpretation technology is different from that of the former,and the latter pays more attention to the loophole supplement and interest measurement.Loophole supplement of international law which is applicable to transnational folk law include analogical reasoning and customary law loophole.The application premise of loophole supplement of transnational folk law is that legal norms are out of step with case facts.How to limit judges’ arbitrary discretion is the core issue of loophole supplement.CAS established new dispute settlement norms through judicial reasoning,created a unique legal methodology for anti-doping rules,and promoted the development of international sports law.Loophole supplement requires legal argumentation and requires high-quality judges to maximize the realization of justice and fairness,which is more difficult to achieve in application of transnational folk law.Chapter 6 shows that international justice is more influenced and restricted by international relations,politics,ideology and other factors,as well as the subjective initiative of judges.Transnational folk law has the cultural characteristics of different legal systems and the coexistence of diverse cultures has brought great influence to international justice.The application of transnational folk law often brings conflicts of interests,and even caters to the interests of individual countries or parties.It may sacrifice the protection of global common interests to safeguard the interests of international non-governmental organizations or international non-state private actors.Arbitration in international sports cases involves different interests,including individual interests,public interests of sport,public policy,club interests and judicial interests respecting precedents.Interest measurement is not only the law application method,but also the legal thinking concept.Different from judicial mediation,which is the main way of interest measurement in domestic folk law,interest measurement method of international sports arbitration is divided into:positive interest measurement method,reverse interest measurement method and five steps of interest measurement.The cross-application of positive interest measurement and reverse interest measurement is a kind of adaptation to the imperfect and constantly revised status of the current international anti-doping rules,which is the applicable approach to measure the interests of transnational folk law.Chapter 7 shows that the issue of procedure fairness in transnational folk law is being improved,and transnational folk law are developing with equal emphasis on substantive law and procedural law,the fairness and efficiency of procedure rules are developing,and the status of procedure precedents in the sources of international law is gradually rising.The way to interpret the rules of anti-doping procedure is to pay equal attention to the legal form factor and the substantive factor,so as to avoid the problem of paying more attention to the form than to the substance.It is concluded that the procedure rules of WADC should be governed by Swiss procedural law.The article focuses on the legal interpretation of article 8 hearing clause of WADC.Public hearing is an important embodiment of arbitration procedure fairness,a new perspective of the study of international sports arbitration procedure,and also the development direction of international sports arbitration in the future.Chapter 8 shows that China should strengthen research on the transformation of international and domestic anti-doping rules,pay attention to the research on the legal methods of international anti-doping rules,establish the rules for dealing with the conflicts between transnational folk law and domestic rules,and establish the judicial review system of the effectiveness of transnational folk law.Combined with full text research,this paper summarizes the construction way of sports arbitration thinking in China:the foundation is relying on law doctrine,the position is abiding by formal rule of law,the idea is insisting on judicial restraint,and the method is using law method.This paper finds that the legal methods of transnational folk law have different interpretation methods and characteristics from the legal rules of national law system.Compared with domestic law,the interpretation of transnational folk law generally follows the logic of legal interpretation,which generally starts from literal interpretation.There is no fixed hierarchy of other interpretation methods.Specific rule interpretation can be combined with multiple interpretation methods,but mainly based on the prescribed rules.The subject and method of interpretation are special;the domestic law of the contracting party is subject to transnational folk law;the application of legal principles has conflict,selectivity and directness;interest measurement of transnational folk law has its special way of application:the cross application of positive interest measurement method and reverse interest measurement method.Compared with international law,international folk law more applies case interpretation and loophole supplement,can draw lessons from subsequent practice,and create a unique legal methodology for transnational folk law.Different from the traditional international law,which does not attach importance to procedural law,transnational folk law attaches great importance to procedure legitimacy,showing a trend of equal development of substantive law and procedural law.The interpretation of procedure rule is to attach equal importance to legal formalism and legal substantive judgment thinking.To meet the requirements of the development of modern rule of law,transnational folk law should and is following the principle of rule of law,drawing lessons from the application of international law and domestic law,and becoming more and more equal to the formal rule of law with the state as the center.However,transnational folk law system is relatively complicated.This paper only takes WADC formulated by WADA as an example to study the legal methods of transnational folk law.The research conclusion may not be universal and needs further research and verification.As an interdisciplinary study of jurisprudence and sports law,this paper has more descriptive content of cases,but it is not enough to legal theories.