On Interest Weighing In The Right Conflict

The right conflict problem has been a legal science research hot spot in resent years, also is a difficulty at the same time. As a methodology of the legal explanation, the theory of interest weighing is an effective method of the right conflict's solution. But the theory of interest weighing has not proposed the persuasive weight rules, which inevitably results in the judge's excessive right of discretion in the practice. At the same time, since the theory of interest weighing is a kind of procedure, which pursues appropriate conclusion in the legal proceeding, it cannot prove the conclusion to be correct or not itself. Therefore, the theory of interest weighing has met with some questions and criticisms.This article is divided into 3 parts, which mainly discusses the rule of interest weighing. The first part on the foundation to discuss the concept, the essence of right conflict, points out that the interest weighing can perform a very important role in the solution of right conflict. This article believe that,right conflict is a kind of interest conflict in fundamental. Therefore,the process of saluting right conflict is a process to weight and choose the conflicting interest. This process is also the process, which the theory of interest weighing utilizes in the document. The second part discusses the concept of interest weighing, the necessity of interest weighing, the meaning of interest weighing. The third part analyses several theories on interest weighing include the theories of restraint and application of Jiatengyilang, the quantitative calmatives method of Alexi, the layered stricture theory of liangshangshang and comprehensive weighing theory of li na .The author puts forward 4 rules in the process of weight: 1.protection of justice interest.2. protection of public interests in society,which includes (1)personal interest of individual interest is higher than material interest;(2) emphasis on some parts in the protection of personal interest;(3)protection for the disadvantaged;(4)protection for the safety of transaction;(5)protection free competition. 3.conformity to attention of legalization. 4. emphasis on effective in society .Through the above, the article tries to make more clear restriction on the right of decision of judges in resolving problems by using the theory of interest weighing, so as to let judges to make up for the loopholes in the theory of interest weighing without damaging legal right of the client due to excessive power of decision. .