The Study Of Judicial Application Of Legal Interpretation Rules

The application is the life of law and the premise of the application is to interpret the law.Legal interpretation is always a problem troubled the legal academics and the practice. Whocan interpret the law? How to interpret the law? How to apply the rules of legalinterpretation?This thesis is dedicated to discuss this problem. This thesis is divided into six part.The first part is a judgment of administrative proceeding which analyzes the conflict ofthe legal interpretation and the role of judge. The author introduces the details of the case, thejudgment of first instance, the judgment of second instance and the legal interpretation of thedepartment of housing and urban-rural. Through the analysis of the case and law, the authorfinds that under the current judicial judgment system the judge do not have the right tointerpret the law.The second part is to explain the contradiction of the judicial restraint and the judicialactivism. The current allocation of the right o f legal interpretation has the drawback in thebalance of the judicial restraint and the judicial activism. A just trial includes the mix of thegood law, the just judge and the objective fact, which the crucial part is the interpretation ofthe judge.The third part demonstrates the allocation of the right of legal interpretation of judge.The just and fair is the key of the law, is also the purpose and destination of the legalinterpretation. So, it is necessary to give the right of legal interpretation to the judge,including the supreme court’ right to interpret the law and the judges’ right to interpret the lawin specific cases.The forth part is to demonstrate the rules of legal interpretation of judge in action fromsecuring the fairness of administrative proceeding. The judge should insist the literalinterpretation first, systematical interpretation second and the teleological interpretation third.Then, the judge should interpret the law under the guide of the new types of administrativecases. Finally, the judge has to balance the provisions and legal facts to demonstrate thefunction of the legal interpretation.The fifth part is to define the application of the rules o f legal interpretation from thepoint of self-restriction of the judge, such as the loyalty of the constitution, observation of the legal professional community, the restriction of the discretion of the judge. In fact, restraintand activism is not incompatible which can betray the justice of administrative proceeding inthe check and balance. The obedience can create the function of the demonstration of the law.The judge of administrative proceeding who holds the point of discreet judicial restraintinterprets the law, which can guarantee the justice of the judgment of administrativeproceeding in the dynamic balance and have the strong social persuasion.The sixth part is the conclusion. The law is the practical reason, which needs to beinterpreted to apply in the practice. The application of the legal interpretation can reach thebalance in the situation of restraint and activism, which needs the judge has the highqualification and the reasonable system of legal interpretation.