Preliminary Discussion On Utilization Of The Theory Of Balancing Of Interests During The Judicial Process Of The Contract Case

As in a period of social transition at present, there're large numbers of events disjointed between positive law and civil life in real life of our country. Balancing of interests as a way of legal explanation to solve this problem, has been used more and more in juridical practice, especially in inquisition of the case of contract. However, the concrete criterion hasn't been defined in our existing law at present while the subjectivity and uncertainty of balancing of interests at birth are leading the judges judge at random extremely easy. In order to use the theory of balancing of interests more reasonably to make up for the shortage of the adjustment of law, judges should weigh and consider balance of conflict of interest by focusing on the function and goal to encourage trade and keep order with law of contract, to protect legal advantage of the party of the case of contract to the utmost, established in essential justice. At last, justice of individual case achieves general justice. This article mainly discussed from 5 aspects: over viewing on the theory of balancing of interests, precondition and principle of appliance of balancing of interests, practical significance of balancing of interests during inquisition of contract case, principle of the utilization of balancing of interests during trial of contract case, and utilization of balancing of interests during inquisition of contract case.General legal principle of the theory of balancing of interests is introduced in the first part. Its historical origin is mainly about the jurisprudence of interests of Germany and realistic jurisprudence of United States, followed by Japanese Prof. Kato Ichiro and Prof. Hoshino Eichi making the theory of balancing of interests formed and systematized, and introduced to our country by our famous scholar, Prof. Liang Huixing. Balancing of interests has characters of individuality, subjectivity, judgment, prerequisite and partialness etc., thus balancing of value, balancing of interests and balancing of common sense are ways usually used in individual cases. Balancing of value abides by value principles of purpose of legislation, demand of society and idea of natural law, mainly analyzing from the value level; Balancing of interests strives to realize maximization of integral interests and minimalist of detrimental results, mainly analyzing from the economic level; Balancing of common sense should be considered with very cautious attitude because it is easy to work but over subjective, mainly analyzing from the sociological level.The second part is about analyzing the practical significance of balancing of interests during inquisition of contract case. That is, balancing of interests is the need of realizing the function of justice in solving disputes, the need of managing conflict of interest, the need of making up the imperfection of the law itself and the need of development and innovation of the law.The principle of balancing of interests during inquisition of contract case is put forward in the third part, basically including general principle and specific principle. It is very inappropriate to carry on balancing of interests totally by the judge's subjective judge under the condition of distempered legal construction of our country. So balancing of interests should follow 4 general principles as limited principle, logical value judge principle, overall consideration principle and interests maximization principle. It is especially to be pointed out, which because the purpose of legislation of law of contract is the principle of encouraging trade and keep the order of society and economy, balancing of interests could achieve reasonable and judicial results as a way of legal inference if it follows the specific principle mentioned above during inquisition of contract case.The author tries to discuss the utilization of the balancing of interests, which respects the willingness of the third party on validity determination of contracts, avoiding too much use of the system of avoidance of contract to declare invalidity of the contract loosely and that system becoming the tool for the hostile opponent to seek some wrongful, even illegal benefits, during inquisition of contract case in the fourth part. Contract terms should be explained with the objective principle of rational third party to make up the weak points of contract and get the rational explanation when the contract is vague, ambiguous and with unclear agreement. When judging alteration of a contract and contract dissolution request with the intertemporal law, it should be inspected in detail to bring a trial in protecting observant party primarily by means of balancing of common sense and balancing of interests. We could keep the legal benefits of the litigant by investigating limitation from the angle of keeping material equity, making amplified interpretation on the origin of incident proved in discontinuance of action limitation by balancing of interests and finding a balanced point between justice value and efficiency value. In addition, we could restrain the objection action of the litigant staying proceedings maliciously in investigating on the exertion of the presidial objection right of the litigant with material equity and honesty and credibility.