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Justified Legal Interpretation Study Of Hard Cases

Posted on:2011-03-03Degree:MasterType:Thesis
Country:ChinaCandidate:Y GuoFull Text:PDF
GTID:2166360332455548Subject:Legal theory
Abstract/Summary:PDF Full Text Request
This dissertation focused on how to achieve a justifying interpreting conclusion when the legal rules uncertainty in the application of the law. Uncertain legal rules usually cause hard cases because divergence of views on interpretation of concrete legal meanings results in the controversial decisions. The scope of hard cases includes disputed cases brought about by knotty problems of concrete facts and by inadequate application of the law in judicial adjudication field. However, the term of hard cases mentioned in this paper should be wider in its scope than previous studies. Hard cases studies can not only be limited to be carried out in judicial adjudication field, but can also be developed in other fields relevant to the application of law, especially administrative performance field related to the communal authority.The legal interpretation method by which concrete meaning of the legal rules could be better grasped is specific practical skills. In practice, the people in legal activities are always trying to make use of a plausible method to explain the meaning. However, different interpretations are given from different system aspects. With the unceasing development of theory, it is generally believed that the legal interpretation method is a legal skill. In recent years, related works indicated a tendency of limiting application of the legal interpretation method to the privilege of judges and appealed for transition from legislation layer to judicature layer. Under the systematic condition in China, legal interpretation is still viewed as the privilege of the minority state machines, instead of practical skills. This is inconsistent with the natural law of openness of communication from different backgrounds, change of linguistics over a period of time, difference of thought pattern in multi-lingual society. Consequently, it was necessary for scholars to limit the theory and method of legal interpretation to the narrow areas to shift off exclusive legislation. With much more theory research, fixing legal interpretation method at judicature layer instead of legislation layer inevitably leads to extreme, neglects function of legal interpretation method in other legal fields. If the universality and openness of legal interpretation theory were supplied, especially in the foundation theory research, cost of the operation of rule of law would be less and realization of legal unification would go faster in practice.At present, it is widely considered that the legal interpretation method is a practical legal skill. The author believes that it should be used in the application of the law. This article, taking a couple of hard cases not in judicial adjudication field as a starting point, through defining the scope and further research, tries to explore the fountainhead of legal interpretation method in hard cases and reveal that only when people completely meet the specification of the legal interpretation method, can we properly ensure to maximize the correctness of explanation, and finally proposes the definition of justifying legal interpretation and the genuine subject of the legal interpretation. Furthermore, based on comparative studies on interpreting laws occurring in hard cases of countries with both the Anglo-American Law System and the Civil Law System, we demonstrate in details the guiding principle and assurance procedure in order to justify legal interpretation of hard cases.
Keywords/Search Tags:hard case, justify legal interpretation, guiding principle, assurance procedure
PDF Full Text Request
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