Research On Status Of The Legal Principles In Source Of Law

The theory of the source of law combines the source of law and judicial practice together, using the law-finding as the method in order to realize the interaction of rules and the fact better in the judicial perspective. The legal principle, as a kind of abstract and authoritative material, often appears in the domain of legal interpretation and argumentation, playing a vital role through the formal source of law. Whether legal principles can be directly applicable in the judicial procedure, if possible, how to apply them are still unresolved in academia. It is necessary to endow the status of legal principles for the requirement of the judge’s refusal to ban the referee and the requirement of balancing the individual cases and adding the loopholes.The article is divided into six parts:The first part is the problem introduction. It is necessary to clarify the legal basis used by the judge when judging in accordance with the law, however, besides statute law, other sources of law need to be quoted when there are legal loopholes and unfair verdict. The legal principles, as the informal source of law, provide the solution.In the second part, we define the legal principles’intension and extension, including investigating the meaning of legal principles and differentiating it from other similar concepts such as jurisprudence, the principle of law and legal doctrine, analyzing the meanings of legal principles in different context, putting emphasis on the comprehension of legal sources, defining the implication of legal principles and clarifying the core connotation, meanwhile, analyzing the extensions of legal principles, sorting out its external form in order to be used for reference and cited by the juridical practice.In Part3, the article elaborates the history and present situation of legal principles as the source of law. In the context of western law, the exploration on natural law, the principle of law, the nature thing and justice principle, reveals the theoretical basis of law application. The legal ideas and actual operation in ancient Chinese judiciary show us the role legal principles played in Chinese legal culture. Examples can be used for reference in modern countries’legislation practice and legal principles own the basis of history and reality as the source of law.The Part4demonstrates the necessity and location of legal principles as the source of law. There are theoretical controversies about legal principles as the source of law:conceptual jurisprudence and the early analytical positivist jurisprudence show negative attitude, while with the development of the theory, legal principles are gradually accepted as legal sources. The value analysis of legal principles as the source of law contains adding the legal loopholes and perfecting the legal system, ensuring the realization of justice for individual case, improving the unity of law application, enhancing the acceptability of the sentence, and so on. Through detailed analysis, we define legal principles as an informal source of law.The Part5analyses the judicial application of legal principles. At first, the conditions of the juridical practice when legal principles are used as the source of law should be clarified, that is, when there exists unfair sentence based on illegal principles in Source of Law and when the judicial basis can’t be found in other sources of law; then revealing the syn-position of legal principles as the source of law in the juridical practice, that is, the formal sources of law take precedence over legal principles, and coordinate the sequence of informal sources of law apply. At last it is the specific application of legal principles as the source of law, analyzing the concrete method such as application by analogy application, teleologische reduktion and expansion, argument from contrary, of course inference and interest measurement. Legal principles are typical of abstract and fuzzy features; therefore, argumentation is needed when they are used as the reference basis in order to enhance the acceptability of the sentence.Finally, Legal principles, as an informal source of law, can provide the referee basis for the judges, provide examples and references for the similar cases, and make up for the deficiencies of statute law. Construction of the country under the rule of law can’t go without the role informal source of law plays. Legal principles, as a kind of informal source of law, have a vital methodological significance.