| Disagreement in the application of law is a judicial phenomenon.The phenomenon of divergence in the application of law has long attracted the attention of the industry,but the emergence of "Disagreement in Application of Law" as a proper term is still a new thing."Disagreement in Application of Law" is not only a relatively important legal practice issue,but also a legal theory issue that needs to be promoted urgently in the context of today’s China.From the perspective of legal practice,on the one hand,Disagreement in Application of Law may have a negative impact on the stable value,steady value and predictable value of law;but on the other hand,it may have positive significance for emerging things and new cases.From the perspective of legal research,Disagreement and Agreement on the Application of Law are the two sides of it.A deep understanding of the "Disagreement in Application of Law" can promote the construction and improvement of a unified mechanism for it.However,our scholars have not paid more attention to "Disagreement in Application of Law".There is a tension between the actual needs and the current state of research.The direct consequence of this tension is that the various measures to unify the application of the law have failed to achieve results,and even backfired.Therefore,it is imperative to strengthen the research on "Disagreement in Application of Law".The most typical way of "Application of Law" is judges use regulations to determine the facts of cases and select the basis for making judicial decisions.What’s more,it is the main field where "Disagreement in Application of Law" arise.Therefore,this article restricts the research content to this main aspect of the main contradiction.Of course,the argument for "Disagreement in Application of Law" can be carried out along the path of ontology,epistemology,operation theory and so on.This article is mainly based on the ontology and epistemology.This article will use the jurisprudence mainly and multi-disciplinary approach as a supplement to deepen people’s cognition of "Disagreement in Application of Law".After all,"Disagreement" is a divergence perception of things.There is no necessary connection between the divergent perceptions and the different results.Different cognitions may cause different results,but they also may lead to the same results;and different results may be caused by divergent cognitions or due to other reasons.It can be seen that the logic between them is neither sufficient nor necessary.This will lead the problem to an extremely complex and difficult to justify situation.In order to avoid the emergence of the above-mentioned dilemma,this article only explores the "Disagreement in Application of Law" from the perspective of ontology and epistemology.All the existing attempts and results of the Supreme People’s Court and the academic circles which have tried to eliminate the existing "Disagreement in Application of Law" between different courts(and within the courts),and strive to achieve "Unification in Application of Law" are worthy of recognition and appreciation.Not only do these efforts conform to the spiritual core of our country’s socialist rule of law,but also they meet the historical tasks and social needs.However,Historical Dialectics requires us to see the two sides of things.Based on the current research situation,it seems that there are not many studies to research what is“Uniform Application of Law Mechanism” from the perspective of counter-evidence(ie,“Disagreement in Application of Law”).The purpose of writing this article and the task of argumentation are trying to discuss the“Uniform Application of Law Mechanism” from the perspective of“Disagreement in Application of Law”,in order to contribute a little personal knowledge to the development of the unified mechanism of the application of law in our country.This article will break people’s traditional cognition of the law with the method of "No Broken,No Established",and I will establish a new understanding on this basis.The reason why "Disagreement in Application of Law" has not been effectively resolved,nor received more attention,is that people have been deeply constrained by certain traditional concepts and fallen into a cognitive dilemma.This article will try to break the shackles of these traditional ideas and re-treat "Disagreement in Application of Law" with dialectical logic.In order to build a practical and feasible Uniform Application of Law Mechanism,our basic attitude should be: to find a balance between moderate tolerance of "Disagreement in Application of Law" and try to establish "Unification in Application of Law".While pursuing the establishment of “Uniform Application of Law Mechanism”,we also should pay attention to "Disagreement in Application of Law" seriously. |
