Perplexity And Enchantment From The Limited Provision And The Endless Affairs

"The provision is gray, the tree of lawsuit is ever green", which can be lively confirmed in the article of the case of two communique. In closely relation to this problem is whether law is certainty or not. Accomplied by the rudiments of human being's rationality, jurists had made different echoes. Absolutely legal certainty or uncertainty has only assumed the duality of certainty or uncertainty, which has resulted from the legal uncertainty emerging in an endless stream and declared publicly the myth disillusioned in the omnipotence of legislation. It is just like the gene of difficult case and the seeds which are sunk in sleep, which is pregnant with the maturity of laws and motivity establishing his reputation as a judge. Usually different cases have four types of fuzzy spirit of law, overlap of articles of law, legal loophole and error of law, Its adjudication not only permeates the elements without law but also confronts the challenges of different value judgement. Although little rate can be shared, it often interferes in the judge's adjudication. Judiciary from the difficult case in our country has still stood servere test. Such as judicial tribural in the weak sistuation, legisilation expelling the judicial activity and judge's quality in the difference of capability etc. Consequently, civil different case in our country should advocate judicial harmony, ie, opposing uninfiexible judiciary and ecouraging judicial activism. But we should take into consideration act according to his capability, make cautious selection and seek in support of a or many methods of interpretation of a or many methods of interpretation of law, which depends on the principles of court decision, or dissolves the conflict of provision, or takes ingenious action in legal heir. Supreme court has already displayed its art of "the fetter's dancer to wear", and mostly came out the road of a judicial harmony. Despite the judicial harmony is therationalization argument of adjudicial art in pursuit of the benign judicial activity from Chinese judge, it has the danger of sinking into speculation on the quagmire, and therefore which needs a "double rail" guiding thought law thought and judicial conscience, especially focus on the adjudicial argument and the cultivation of the judicial conscience.