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Research On Countermeasure To Circumventing Law

Posted on:2012-09-25Degree:MasterType:Thesis
Country:ChinaCandidate:S Y ZhouFull Text:PDF
GTID:2216330338462060Subject:Legal theory
Abstract/Summary:PDF Full Text Request
The law is an invariable rule which is used to response to the ten thousand changes and approach to the Rule of Law. But after all, the law falls behind the society's development. Meanwhile, it just wants to use the limited texts to regulate the diverse reality. At the same time, the limitation of language appears pale and weak in the life. So, in the practical life, there are many kinds of litigants to go round the rule. Circumvention behaviors used to be in the international law domain. But now, they also massively lie in the national law domain. The law is dodged, and it is even built on stilts. This phenomenon is more obvious in the social transition period. This article mainly discusses the widespread circumventing law and focuses on regulations method.The first part and second part mainly discuss the widespread circumventing law, analyze the hazards, and draw the conclusion from the legal text retrieval:it is difficult to regulate circumventing law in China. Although theoretically, circumvention behaviors are often got contempt. But in actual judicial operation, circumventing law is extensive. Civil field, criminal field, administrative field and other fields are filled with all kinds of specific circumvention behaviors. While, the law has few rule to regulate those behaviors. Even in the judicial practice, the judge also thinks that it is difficult to deal with those behaviors. The legislation attitude is indifferent and the judicial attitude is ambiguous. All of those let circumvention behaviors more popular. It not only sacrifice the case justice, but also exile the dignity of law.The third part focuses on the different legal systems'circumventing law phenomenon and draws the conclusion by comparing the use of anti-circumvention laws.Our country should mainly use the legal method, accompanied by other methods. Admittedly, in a way to circumventing law has some positive aspects. For example, it can conducive to promoting reform and innovation, and it is helpful to form the communicative rationality. But to a large extent, it is a destruction of the rule of law. From the causes, it has remarkable intention to circumventing law, so that the Rule of Law is threatened. From the behaviors, it wastes limited resources, thereby total cost of social governance rises. From the consequences, it dispels the law authority and the law faith.By the comparison between Anglo-American Legal System and Continental Legal System and the comparison among Continental Legal System law, we know that, in connection with our practical situation, we should resort to the legal method. Because it not only defend the dignity of law, but also let the pale texts full of contents with the help of legal interpretation and other concrete methods. Through ascertaining facts, escaving the covert facts, using legal methods such as literal interpretation, systematic interpretation, teleological interpretation and sociological interpretation, we can regulate some circumvention behaviors. Meanwhile, we should establish the unified counter-circumvention law, perfect that burden of proof in reverse. Also, in order to regulate the circumvention behaviors more effectively, we can resort to artificial intelligence, perfect monitoring and punishment mechanisms and enhance information and intelligence exchange.The fourth, fifth and sixth part discuss the specific method of anti-circumvention laws. First of all, we should use legal interpretation to regulate the circumventing law.Finally, the article draws the conclusion:we should use the comprehensive methods,such as legislation method, the legal method and other methods.
Keywords/Search Tags:Circumventing Law, Legal Interpretation, Legal Fact, Analogy Reasoning, Legal Rhetoric
PDF Full Text Request
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