Research On The Method Of Comparative Interpretation Of Law

The method of comparative interpretation of law is an approach, which by refering to the foreign legislations or cases to explain the national laws or fill legal loopholes in a country’s judicial practice. As the method of comparative interpretation has its unique meaning and value, jurisprudential circle should pay more attention to it, and improve the level of research.The main text can be divided into five parts. The first part is raising questions. With the development of globalization, the importance of the method of comparative interpretation of law has become increasingly prominent. Research in this area in China is lagging behind, and yet to be developed. The writer make reference to the definitions of the concept of "the method of comparative interpretation of law" done by scholars, then define the connotation and extension of this expression which to be discussed in the paper.The second part reviews the appearance of the method of comparative interpretation of law. and explores its theoretical basis. The development process of the method in foreign countries can provide experience for us. Several conclusions could be prove by theoretical demonstrations. The application of the method of comparative interpretation of law is judges’free choice, instead of an violation of judicial sovereignty. What the judges abide by are urisprudence rules, but not simply foreign laws. If a national law is inherited from some foreign country, then the foreign law must be inferde to. The application of the method of comparative interpretation of law is necessary in the internationalization of law.The third part discusses the positioning, principles and steps of the method of comparative interpretation of law in judicial application. Comparative interpretation is a broad interpretation method. It can be used as either a narrow interpretation method, or a method of filling legal loopholes. From the macroscopic angle, the writer put the application principle summarized into three points. Firstly, must not ignore the provisions of the national law to invoke foreign laws. Secondly, understand the comparative object comprehensively and accurately. Thirdly, the foreign law must be adapted to the national conditions. From the microcosmic angle, the specific application of this method is divided into five steps, and functional comparison should deserve a dominant position in comparative interpretation.The fourth part analysises the obstacles of the application of comparative interpretation, and gives the corresponding countermeasures according to China’s national conditions. The writer summarize the domestic status of the application of comparative interpretation, and draw a conclusion that differences in national conditions, judges’low quality, and lack of system are obstacles of the application. In order to remove obstacles, the judicial system is to be perfected, theory community should provide greater assistance, and legal education should be more scientific.At last, the paper reaffirms the importance and urgency of developing the method of comparative interpretation, and looks to the future of this interpretation method.