The Analysis Of Methodology Of Legal Finding In The Judicial Perspective

Legal finding is an indispensable component of judicial activities of the judge,which is the organic combination of enacted law and judicial judgment, one of theimportant legal method of achieving conversion from rule of law to case ruling.Although different understanding of legal finding exists between the legislativemeaning and judicial meaning, however, this paper aims to study that legal findinghow to apply in judicial activities through the analysis of judicial process, whichcomes to the judgment by the interaction between the facts and the law.Accordingly,there are mainly two meanings of legal finding in the judicial perspective: First, itrefers to the activities of the judge to find out the applicable law which can apply tothe case or the applicable explanation; Second, it refers to a series of activities of leakfilling and law renewal making if there is no clear rules or interpretation of law whichcan be used. This paper focuses on the perspective of law to study the legal finding,fully exploiting the methodological significance of legal finding by the analyses ofimplication, value, specific application, and finally looking forward to the the use ofthe law method in the judicial practice in China. This paper will be divided into threechapters to discuss around of the relevant contents of legal finding:The first chapter is about the implicative definition of legal finding and theanalysis of valuation. The definition of implication of legal finding is based on twoparts, the dual understanding of legal finding and positioning of legal finding in thejudicial perspective.And then it expounds the concepts of value of the pursuit offairness and justice of legal finding, the function of maintaining the stability of law, as well as the universal value for the general case and the special value for the difficultand complicated case. So this analysis follows the general rule of understandingthings which starts at the image perception, which can pave the way for the below toexplore the methodology of legal finding.The second chapter is about the study of methodology of legal finding, which isthe emphasis of this paper. Based on the analysis of the legal discovery process, thispaper discusses the perfection of syllogistic model by the theory and model putforward by Kaufman, which could guide the study of the method of legal finding.Then around the core issue of legal finding, this paper analyzes the interactive processof legal finding between the rules and the fact. The purpose of legal finding is to findthe best legal judicial and most justice plan to the judgment of case, which aims tomake in-depth analysis and research of legal finding. Finally, it discusses the specificmethods of legal finding, including legal interpretation, leak filling up, law renewalmaking, interest measure and so on, in order to make better use of the methodology oflegal finding according to the reality of judicial judgment.The third chapter is about the legal finding of judicial practices in China. First, itintroduces the application of legal finding in the current judicial practices of China,including five aspects, the direct interpretation of the judicial explanation, leak fillingup of judicial explanation, the legal finding of guiding case, the legal finding ofdistrict court found in the practice of the law, interest measure in judicial practices.Second, the article analyzes the factors of the influence of the legal finding activitieswhich contains the judicial system, case system, social demand and the legal literacyof the judge. At last, the article makes an outlook of the legal finding method in ourjudicial practices about making completion of the judicial interpretation system,strengthening the guiding case system, deepening the effect and function of theguiding opinions provided by the district court, regulating the discretion of the judgeand so on.