Substantial Justice In Judicature And Function Expanding In Judicial Discretion

The research in this thesis is with an eye to investigate the probability of the substantial justice in judicature, the subject of judicial justice can't be seceded the substantial factors in the judicial province and can't escape from the legality of the legislation either. Rules, which constitute the main part of law, are originated from legislature, at the same time, the substantial justice concentrating on the specific law case is closely linked with the rules mentioned above. Besides, where there is the province out of domain of rules, the judicial discretion will play an important role in legal practice. That is to say, we should study the function and boundaries of judicial discretion. First, this article commences with the relationships between the value (moral) criterion and law criterion towards the same law case in practice. We will find that the validity of rules entitle power by itself which related with the positive law, whereas, the substantial justice of rules about law cases are relied on the moral justifications on the rules. Therefore, if somebody holds the justice of law, it means that the rules depend on the justification of morality. It contains two aspects as follows. On one hand, if we find some moral basis on the positive validity of law in the rules, we must justify it. On the other hand, moral theories about the rules are opened for what we regard them as. Different theories of legal justices can draw the same conclusion on legal rules in the end. So the approaches to the justice of rules are not only one perspective. We defined the marshal with all kinds of moral justifications as legal moral substantiality that means contradictions contained. It's a fixture presumption as an analysis tackle to gain the justice of law. However the rules constitute the main body of law, the substantial justice in judicature lies in the understanding of moral conscience and moral justifications. Subsequently, judicial discretion is analyzed in this article, which means that which conclusion will be drew before court under the conditions that there is no so precise defined rules. It focuses on the logic validity of law and the justification of law. In judicial process, the judge will draw a conclusion with explaining, reasoning of law, also including legal argumentation. At...