Balancing Of Interests In Legal Method

As an interpretive methodology which emphasizes the value judgment,the methodology of Balancing of Interests has been arousing a huge repercussion and controversy.With the perspective of the legal method,this article discusses the details of the Balancing of Interests from many factors such as the conceptions,history and actuality,current necessity,usage rules and methods,limitations of this methodology and so forth.Because the Balancing of Interests have the features of peculiarity and precondition.This article takes an case on intellectual property designedly.Of course, the Balancing of Interests has its limitation,so it needs more regulation to eliminate its inherent defects and to prevent being abused too.This article is divided into 4 parts,which mainly discusses the rule of Balancing of Interests and positive analysis of Balancing of Interests.Part one discusses the current researches of Balancing of Interests.Civil law countries mostly pay attention to this area,especially in Germany and Japan: common law countries seldom explore this area.Therefore,the theory of value judgment is divided into German Balancing of Interests and Japanese Balancing of Interests.As far as China is concerned,the author coordinates the basic materials with legislation and judicature fields,and compares the author's opinion with the Balancing of Interests in judicature.Part two discusses the academic foundation,concept,justification and necessity of Balancing of Interests,distinguish the profit judgment and Balancing of Interests when defining the concept of Balancing of Interests,and explores the precondition and nature.Part three discusses the external relationship of Balancing of Interests.This part focuses on exploring the method to learn Balancing of Interests,and differentiates some concepts,including law explanation,value scale,Balancing of Interests and law rebuilt,then,orientates the Balancing of Interests method.Part four discusses the demonstration analysis by applying the method of Balancing of Interests.The author narrates that the method of Balancing of Interests plays a basic role in intellectual property through setting an example of a patent dissension case.All this proves that it is very important to applying the method of Balancing of Interests.