Theoretical Study Of The Thoery Of Balancing Interests

As people on the characteristics of the law itself and the legal operation of trial and error, the concept of law subject to criticism, liberal law, sociology of law, legal realism flourished in the world. Affected by this change, the balance of the theoretical benefits into the spotlight. In this paper, a total of six parts, namely an introduction, four chapters and a conclusion, use the method of case studies, literature review, comparative law, such as a balance of the theoretical benefits of research.Introduction section of this article discourse the research of balancing interest in our country, some questions still exist in the present study. Since the 1990s, China began to the boom of research to balancing interests, there are a lot of introducing of theory from different countries and Chinese scholars began to explore their own application-oriented research, but there are still some fog in theory, a very confusing situation in Practice.The first chapter start from the introducing of diputing between Professor Liang Huixing and Professor Meng Qinguo about" promo table " case, analyze theoretical issues behind the dispute between the cases reflected. To balance the interests in the study, we need to be clear what " interest" how to " balance " and how we should take the position.The basic point of the second chapter summarized our balancing interests theory (includce the doctrinal and judicial practice). Since the initial study of balancing interests in our country began with the introducing of Japan’s Civil Law hermeneutics, our theory have a deep contact with Japanese theory. Thus our theory is followed Japan’s balancing interests theory on the background and the main advocate of the sort, focusing on the theoretical proposition and Ichiro Kato Eiichi Hoshino’s.The criticisms to Japanese balancing interests theory reflect problems in our theory.The third chapter discuss the theory of substantial interest to balance interest in Japan under the Influence of balance theory on classification and stratification of interest. to explore we use of case studies to analyze Professor Liang Shangshang as the representative of the interests of the hierarchical theory whether could been practiced. Heike as the representative of the balancing interests theory in Germany, is compared with Professor Liang Shangshang who is the representative of our theory.The fourth chapter briefly describes several categories balancing, for questioning the issue of subjectivity measurable interests, while noting that the balancing interests is not equivalent to " sort value " or " sort of interest "; hand on several existing kind of tried to analyze and evaluate methods for measuring the objectivity, reasonableness guarantees, such as the use of judgment as balance lawmakers on security, with the judge sociological theory as a balance of security, with the interests typed as a guarantee of balance theory, to guarantee objectivity interactively balance theory. the constitutional balance theory from Alexy and Ⅱ levels of reasons from Raz could be used as objectivity reasons for balancing interests.The conclusion summarized the overall framework and main content of the full article, discusses the important points of balancing interests theory by Japanese and our self- improvement balancing theory, the theory of classification and stratification of interests were evaluated.We should alert the way proposed by the method allowing Legislation instead ing by the justice. Finally, the balancing interests should apply to meet the need of the stability and validity constantly.