Law Continued To Build In The Judicial Process

The process of justice is that the judge makes use of rationality initiatively, and connects the abstract rules of law with material facts of case appropriately. In this process, the judge makes the equity of justice come true. Because of some reasons, the law appears delayed response to new business or exists the shortcomings of adjustable contents in it, then in this time, it needs the judge supplement it according to the spirit and the value of law, with the help of the law's principles, and use the technology of Richterliche Rechtsfortbildung to supply it. All of those can make the judge try his best to adjust the relationship of society better in order to make the limitation minimum. The first chapter of the thesis dissertates on the concept of Rchterliche Rechtsfortbildung, including four facets, namely, the signification, quality, reasons and sense of it. According to comparing the differences of Rchterliche Rechtsfortbildung with the creativity of law, complementarities of the law's gap, the revision of the law, the author draws a conclusion that the Rchterliche Rechtsfortbildung products the new rule, which the judge, not the legislator, makes foresighted judgment when social transformation occurs, during this process, the more proper rule compared with current rule comes into being. Though the rule has not common sanction, it has separate sanction, instructional significance and develops the thinking of law little by little. When the judge does that, he is on the side of microcosmic position, respects the purpose of law and accords with the order of law. The methods and principles of Rchterliche Rechtsfortbildung are expatiated at the second chapter of the thesis. Firstly the author introduces several methods of Rchterliche Rechtsfortbildung, such as analogism, reduction or dilation for objective, advantage balance for a certain case and so on, then analyses each method's merit, shortcoming and the relationship among them. However, Rchterliche Rechtsfortbildung can't get out of the statutes, the order of law and the value of law. At the same time, it can not do any principled readjustment or...