Discussion On Utilization Of The Theory Of Balancing Of Interests During The Judicial Process Of The Contract Case

Our society is now in the transition period, various contradictions highlight,which led to the judicial practice in cases showing a new feature. New types of casescontinue to emerge. For the stability characteristics of the law, legal basis with thecorresponding did not keeping up with the pace of the trial.In real life, the law oftengoes out of touch with the realities of the situation. In view of such a situation exists,the judge adjudicating cases can not have the negative attitude for the introduction ofrelevant laws. But by using the theory of balancing of interests can solve thisdilemma. In the trial practice of individual cases，the relevant legal provisions cannotbe found or conflict, even goes to no choice dilemma. That is why the author wants toexplore related problems. The theory of balancing of interests was first imported fromJapan by Professor Liang Huixing in twentieth Century90years. As the theory wasintroduced, it has aroused great repercussions in our theoretical circles and practicalcircles. But in these theory of judicial practice, the direct application, or operableopinion were less, and more rare in combining the concrete case.This paper attempts to discuss about the theory of balancing of interests, thetheory of meaning, necessity and applicability in the judicial practice, and to clearlydepict the theory of balancing of interests. So that can be used in a specific case. Theprocess of balancing of interests with strong subjectivity, and the specific standardsummary is still fraught with difficulties. but this does not hinder to generalizedabstract and summary the basic principle and operating methods. Based on the basicprinciples and operation methods, and combining the concrete contract to trial, willpresents the special principle and method of contract cases. Using the theory ofbalancing of interests in the contract in the case is reflected in every aspect, but inview of the limited space, this paper mainly discusses in the void contract, contractinterpretation and contract change the situation to determine and circumstance. Thereason of choosing these three aspects above is that they are more frequent andcontroversial exit in the case of contracts. Considering the relationship between the contract and the public interests of thesociety and the necessity for invalid contract are applied to the determination of voidcontract. Only the contract is the breach of the "important" social public interests andhave confirmed the necessity of invalid, the contract should be recognized as invalid.The contract should not be arbitrarily declared avoided. Theory of social publicinterest priority, ensure the benefit maximization and the minimization of loss andcurb illegal interest principle to measure as embodied in the identification of voidcontract system of interests. The interpretation of the contract should be limitedwithin the scope of the legal system, and it also should protect the weak interests.At the same time the power to interpret of the judge should also be limited, and not beexaggerated. Specific to the case of contracts, the judge should use "objectiveinterpretation of the rules “as a rational third man" to interpret the contract and givespecial attention to the interests of the weak. A party to the contract petitioned thecourt to alter or dissolve the contract with the intertemporal law, the judge needs tomeasure whether the intertemporal law exists and it is necessary to alteration ordissolution and how to etc..For the subjectivity and uncertainty of the balancing of interests, theory andpractice of law to study the theory of balancing of interests is not formed through said,but the theory still can make up for the lack of legal regulation, and guide the judicialpractice in general. Introducing the balancing of interests theory into the contract casein the trial, to move forward the theory and find more specific guidance method forthe case of contract.