On The Judicial Application Of Basic Principles Of Civil Law

From the origin, the development and the process of Basic Principles of Civil Law’ gradual maturity, we can see that the purpose of establishing Basic Principles of Civil Law is to overcome the limitations of the statute, which has always been the fundamental role the Basic Principles of Civil Law played. In judicial practice, when a judge faced the situation that the rules of law are not perfect, he could conduct the trial according to the Basic Principles in order to achieve the social equity. Nevertheless, we still have challenges and dilemmas in judicial theoretical and practical application when we invoke the Basic Principles of Civil Law, so we should try to find ways to help us out of these dilemmas, with a view to better servicing the socialist rule of law.This article is divided into four parts.The first part discusses the definition, the characteristics and the content of the Basic Principles of Civil Law and its function.The second part starts with the process of Basic Principles of Civil Law’s development. Combined with the analysis of Civil Law’s nature and value, this part concludes that to invoke the Basic Principles of Civil Law in judicial application is necessary and the rule of law have precedence over Basic Principles of Civil Law in judicial application.The third part discusses the plight of judicial application of the basic principles of civil law in China. As for the theoretical aspect, we have the plight that there are no rules of how to apply the Basic Principles of Civil Law, it is unknown that whether the Basic Principles of Civil Law should be invoked as the base of Right of Asking for or should be invoked as the criterion in the judicial explanation and demonstration. Besides, the problem that "the general terms side-step" when we invoke the Basic Principles of Civil Law is still needed to solve. As for the practical aspect, we still face the difficulties caused by the characteristics of Basic Principles of Civil Law’ ambiguity and non-normative, in addition, due to the regional variation and the different capability of the official, the similar case may be given different judging results, this is also another problem should be solve in judicial practice.The fourth part analyzes the causes and nature of the problems in theoretical and practical judicial applications, giving the methods to solve the problems. The methods could be demonstrated in two aspects:in the theoretical applications, we should establish three Basic Principles, which are "exhaustive rules before basic principles ","If there is no stronger reason, Basic Principles of Civil Law can not be used without consulting anyone"," if not exhausted the analogy and explanation, the Basic Principles of Civil Law could not be used", these three principles should be guaranteed by legislation and judicial interpretation to reduce the frequency of application of the principle of the civil law; in the practical applications, we should perfect our case-guiding institution, improve the overall quality of our judges and status, strengthen the construction of our supervision mechanism, in order to make all the judicial officials adapt to the judicial requirements of Basic Principles of Civil Law.