Research On Balancing Of Interests In China’s Judicial Application

In recent years, with the development of reform and opening up, our country have entered into the important transition period, and the diversity interests of our community have been gradually brewing and developing. Conflicts of interests among various sectors or in the same sector become more and more obvious and dramatic. The era in pursuit of single judgment has already passed. Involving a variety of interests in the case, the judges have to wander from the law to the fact repeatedly, but can not settle a lawsuit. The complexity and multidimensionality of interests besides the social relation of the parties force the judges to try to break away from the shackles of the legal framework, as well as the expansion of the influence on the social policy from judgment. However, they ever find the road to justice. If judicature continue to play its role like "balancer", it is necessary to keep the pace with the times and take more practical and flexible approach to solve the problems. The judicial process is an emotional practice which is basing on the ration and passing it. And it is also a practice that the judges use their wisdom to assess the interests and values and make a choice. The produce of balancing of interests caters to today’s social situation, and also gives the rigid judicial philosophy of conceptive law a head-on blow. There is no doubt that balancing of interests is more suitable for the complex situation of the judicial practice than other judicial methods. The core of balancing of interests is the interest, the method of it is comparing and balancing, and the purpose is fairness and justice.On the basis of the current situation of judicature, this article takes "Luzhou Bequest Case" as the entry point and proposes that how we can apply balancing of interests to our judicature. The intention is to give advice for the judicial practice in China. This article is divided into five sections.The first section is to pose the question, that is what road is suitable for balancing of interests applying to judicial practice. The second section is to define balancing of interests in our context. It should be recognized as a process of an interest-based judgment and decision. In a word, the judges analysis and screen the conflict among the interests according to the law. and explore the attitude of the legal norms on the interest. then compare and make ready for the judgment. It varies from the theory of balancing of interests in Germany, the United States, Japan and other countries. The third section is to analyze the necessity and possibility. Through the necessity, we can point out the inevitability of its existence. We can also draw the point that balancing of interests can be recognized and welcomed by practitioners, and greatly develop through the possibility. In the forth section, the problems in our current performance are exposed. In the meanwhile the reason would be made known. The fifth section is to reveal the solution to the problem and to show the approach of the application of balancing of interests in our country. The goal of this article is to summarize the road of the judicial practice of balancing of interests by analyzing the status of it in China.