Balance Of Interests In The Judicial Process And Its Optimization

The judicial process itself is a process of combining subjective and objectivefactors, the judge will integrate the case facts with the law applicable organically,forming an organic unity which is combined with the embodiment of the subjectiveand objective factors, the judge in the process will use many ways to apply the law,one of these methods are legal theory and practice field known as the "goldenmethod", it directly affects the judge who can make the right judicial decisions, andthis method is balance of interests in the judicial process.This article is about balance of interests theory′s development and the judicialapplication practice both at home and abroad,the balance of interests theory in modernjudicial field analysis, and combined with specific case one by one in contemporaryjudicial benefit to measure the main principle and function for further study, mainlyaiming at the existing problem of the balance of interests of justice in ourcountry,which puts forward constructive suggestions. Firstly elaborating the interestsin an introductory, it runs through the whole process and all aspects of the rule of law,and puts forward the logical basis points that it is the rule of law construction point ofview. Then combing the interests of foreign judicial measure respectively researchresults with research dynamic in domestic judicial balance of interest. Theintroduction of judicial problems of balance of interest in our country weresummarized. Expounds its own research method, which is divided into four partsbesides an introduction, they are respectively as follows: The first chapter is about the source of balance of interests, according to thetheory of modern judicial interests, different social main body of the request and therelationship of the modern rule of law and conflicts of interest. Including the interestsof the modern social value, the justice and interests measure, representative theoryand balance of the interests theory and the practice explorative research in China.Which put forward new balance of interests and legal operation of dynamicmechanism research. what described in detail in this chapter about balance of interestsis within the scope of the law and order against lawmakers for all sorts of all sorts ofproblems and conflicts of value judgment of observed and speculation. Thecontinuous development and progress of modern society, all kinds of interests areincreasingly showing a variety of forms, and their numbers are growing rapidly.There are many new case, or it is due to the relative lack of legislation, lack of clearlegal provisions, or the current laws are conflict and ambiguous. The objectiveconditions requires the judicial person, legislators and scholars to explore the newmethods to solve the problem, and to be sure, the judicial process can’t leave thejudge’s subjective initiation, the judge in the judicial inevitably judge and measure thevarious conflicts of interests, in order to realize the legal value goal. Therefore, thejustice of balance of interests is inevitable.What points out at the same time, thebalance of interests also exists in the legislative field which has the priority status.Therefore, judicial lawmakers cannot go beyond the interests of the measure. Lawshould note that when someone makes balance of interest to temperate, prevent thepersonal feelings and subjective opinions when they deal with trials.Chapter2is about the measure of using the interests in the judicial field analysisresearch,including the interest under the law and improving the methods, in this partthe author puts forward following the scientific connotation of the judicial syllogismparadigm, and interest measure, which can guarantee the quality of the judicial referee,but that cannot replace the law referee with the interests of the measure of justicewhich should be based on objective materials, which can lead to judge theindiscriminate law, unfair and irrational to make a decision, the judicial referee losescientific value. The author summed up the balance of interests work is roughly divided into three steps. One is to determine disputes involving the interests,thesecond step is to discover and adopt the legislative spirit and orientation, in the end,basing on the above two steps, and combined with the existing law, the judgecoordination between the interests of the conflict. Under the legal interests contentinvolved in the paper, the balance does not have independent directly as the refereebasis function, for that under the benefit is measured as the value judgment of aconcept,what is more objective than value judgment, specific important method,which is associated with the value orientation. Found balance of interests will not beon purpose to expand the function of the major premise, therefore, it is a kind ofauxiliary hole filling method. But this is not according to balance of interests will notplay an important role in the absence of legal cases. Instead, various legal loopholescan use with the interests of the measure of packing method to establish the bestoption. Involving in this chapter are included from the criminal justice, civilprocedural law and civil substantive law, administrative law practice Angle combinedwith the analysis the typical case of each department. Clarify balance of interests iswidely used in the judicial field and its status.The chapter3is about the measure of the operating principle of the interests inthe judicial induction and analysis, combined with the typical cases from theperspective of judicial aims and methods, From the Angle of legal economics, justicevalues. Respectively corresponding to the proportion principle are studied, this articlepoints out that this principle derived from the theory of administrative law is the basicspirit of balance of interests and legal basic spirit is consistent. No matter from thedepartment the rationality of theory and practice point of view, justice should alsoapply the principle of proportion. In this chapter, this paper points out the principlesof efficiency, aiming at property dispute cases, principle of benefit measure efficiencyprinciple in judicial shows obvious effect in the side. balance of interests efficiencyprinciple is mainly economic cost-benefit analysis method in the practice of law,especially in the field of justice for transplantation and to use the product. In additionto the above two kinds of principle, of balance of interests and legal principle ofinterest balance, the law of interpreting the text should be fully consider the interests of the parties and the principle of balance interest in the interests of the measure shallalso be placed in the use of in the interests of the social environment to test is theprinciple. In this chapter, the author also analyzed the balance of interests′function ofinterpretation in the judicial practice, to assist the legal loophole filled function,validation function, demonstrating function of comprehensive analysis, showed thatthe important role and balance of interests in the judicial practice.Chapter4is about the judicial balance of interests factors often appears to ignorethe prominent problems of analysis. The judge in the process of the reasonable correctuse of the benefit measure should consider various factors, these factors together isthe important content of balance of interests using the method, judicial thinking pathunder the guidance of correct practice smoothly. What is for the case in the balance ofinterests for the specific interests adjustment, but for many of the interests of themeasure adjustment, the judges have different practices, what’s more, according tosome factors can easily be ignored. Interests in the second part of this chapter is thelegal measure the defects of the application of the research, mainly includes the theoryand practice of related balance of interests theory system is not sound, lack of unifiedstandard to judge, the reasoning of the unclear, preconceptions on the method of lawand judicial practice and theoretical research, and disadvantages of analysis. Putforward the ideas to solve the problem into the road. One solution of balance ofinterests and mental outlook is the legislative work in the judicial practice ofinnovation.Put forward to strengthening the judicial culture contains the spirit culture,judicial knowledge culture, behavior culture and four judicial honest culturalconstruction is one of judicial balance of interests is the improvement of the existingproblems in the expansion of the way, which have realistic meaning and effect.