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The Timing Of Judge-made Law

Posted on:2013-01-27Degree:MasterType:Thesis
Country:ChinaCandidate:H Y WuFull Text:PDF
GTID:2246330371493686Subject:Legal theory
Abstract/Summary:PDF Full Text Request
In the Anglo-American law system, there has been an important rule that judges couldhave the authority to make laws. With the increasing blends and mutual complement of thetwo major law systems, the continental law system also starts to adopt this rule in amoderate way. Take Germany as an example, it has explicitly given judge-made lawvalidity in its administrative law. Although being not admitted by Chinese legislation,judge-made law has become a regular case in the judicial practice. As a real existence,judge-made law has many advantages but meanwhile it also has some inevitabledisadvantages. Bearing the above situation in mind, the study of judge-made law wouldhave more realistic significance.The judge-made law, as the inevitable requirement of legal response to the change ofsocial relationship, with democratic legitimacy, is the inevitable result of legalinterpretation, also a purport of the measure in the case interest. Besides, the judge’smaking law also have the strict conditions, that is judge-made law needs requirements,mainly includes judge-made law during the rule’s choosing and the final stage. In terms ofparticular situation in china, the lack of effective supply in the legislature’s enacting lawdecide the objective existence of the judge-made law,the broad and flexibility in thejudgment’s choice offer the space and opportunities of making law, and "reasonable social"also make the judge-made law possible. But it should be pointed out that even if thejudge-made law in china shall be admitted, it is improper to be advocated and suggested inforce. The judge’s making law must be restricted; they shall not make law in the situationthat it is not opportunity to make it. Even there is an opportunity for the judge-made law,the judge should also respect the rules; At the same time, as the judgment of precedent, itshould be fully reasonable.
Keywords/Search Tags:judge-made law, timing, legal interpretation, legal loophole, legalunjustness
PDF Full Text Request
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