Folk Law And The Interests Balancing In Judicial Process

A distinct characteristic of the legal science is the practical rationality. This characteristic had decided that following the practice of the law construction in our country, the conversion of its research direction is inevitable. From the exterior value summon to the internal standard research, from the law ontology to the methodology, from the legislative center principle to the judicial center principle, constituted the three respects of its conversion of the law research. But when we return the vision from the legal outside world to law's internal question, from the legislative center to judicial center, what we can not but give the sober understanding is, attaching great importance to the internal problems of the law is not equivalent to rule out the outside world of the law provision, and the provision of law is impossible to solve all problems. To resolve the conflict and loophole of the positive law, which is unable to complete by itself, other norms is necessary. As an informal norm, the access into the judicial course of the folk law is inevitable.The former researches about the folk law mostly concentrates in the noumenon description or static thinking of it as an objective reality, and analyze the related questions in the position of sociological jurisprudence or anthropological jurisprudence. However, only in the dynamic operation of the judiciary can the folk law enter the actual result from the static state, and only in the connection with the legal method can it provide the practical effective plan for the social dispute. Therefore, researching of the folk law also faces the transformation.Interests balancing is a legal method used by the judges in the judicial process. As a special method, the living space of interests balancing lies in the conflicts pattern between the norms and different interests. The difficult position this theory faces is that, its proponents have not found an effective measure of this balancing, that is the concrete basis of it.Inspecting from the angle of ontology, there are rich resources about interests balancing in the folk law. On the one hand, the containing social values which certain people believed in and abide by and the reflected mainstream values of society make it become an important factor the judges have to consider. Meanwhile, the stability and relative tender characteristic of the folk law make it easier to receive psychological approval of populace. On the other hand, just like the formal norm, the rights and obligations adjusting mechanism which the folk law contained, is also a mechanism of interest confirmation, distribution and adjustment. This mechanism is the premise for the beginning of interests balancing. The "reason entered the judicature" tradition in ancient justice of our country also has provided some limited reference value for us.From the dynamic operating perspective, folk law firstly play an important role in the diversified interests identifying and analysis, and provide a reference basis to the protection of the spirit interests. Secondly, in different conflict situations, folk law enters the process of interests balancing in the right time, so that difficult cases appear to be appropriately refereed.The existence of the judicial mediation system provide a good and loose operating environment to the judges interests balancing, and effectively avoided the tension between the discretion of the judges and judicial restraint. Because of the characteristic of itself as well as our country's judicial system, folk law is easier to play a role for the dispute settlement in the process of judicial mediation. Folk law and interests balancing found the right combination opportunity in the field of mediation. Judges introduce the folk law into the mediation, may enable the interests balancing to obtain fuller realization.Certainly, regardless of its own inherent characteristic or the influence to judicial operation, folk law has the inevitable limitation. Judges should accurately handle the scale of them, in order that the folk law performs its truly due function and finally the interests between the two parties restore balanced condition.