On The Generation And Justification Of The Judicial Norm

In a judicial judgment, what is the direct ground when a judge trials a case? Generally people think that it is legal norms, a legal norm is a norm of decision. But in fact, the legal norm is not the direct ground, only is the starting point where a judge form a norm of decision. The major premise which judge trials on is the individual norm created by judge according to the condition of the concrete case and combining with legal norm, aiming at resolving the dispute in the process of judgment. It is also called norm of decision.This paper is divided into the following four parts to research norms of decision.The first part is the status and significance of the research of norms of decision. The research of norms of decision can lift up the mysterious veil of trialing case by judge, open out the real basis which the judge judges with, eliminate the thought of people thinking the legal norm is the norms of decision, thus provide theoretical guidance for judge forming norms of decision in judicial judgment.The second part is the term and concept of norms of decision. The norms of decision is different from the legal norms, the trial norms, the judicial criteria, the directing principles of case, judicial abstract, judicial gist. It is an individual norm created by judge according to the condition of the concrete case and combining with legal norm, aiming at resolving the dispute in the process of judgment. It has the proprietary in the scope of application, the dynamicity in the generating process, the singularity in the principal, the individual of effectiveness.The third part is the generation of norms of decision. Norms of decision generates in the field between case facts and the legal norms. The case fact's formation may divide into two kinds of situations. One, judge forms case facts with the facts presented in court according to the law sense. Another, judges according to the law sense, imagine some facts—the presence or absence of which is very importance to judgment, by asking and inquiring which forms law case. On the basis of the case fact formed, the judge shuttling between the facts of the case and the legal norms, forms a norm of decision with the law method of legal recognition, legal interpretation, complementarities of the law's gap and so on. In this process, the judge's sense of legality is an important factor to norms of decision generating.The fourth part is the justification of norms of decision. The justification is the need to convince judge himself, to convince the parties the community. Internal justification and external justification are two ways for norms of decision justification. One validity norm of decision must be accord with the requirement of formal logic on internal justification, to conform to the legitimacy standard and rationality standard on external justification.