Double Dimension Of Hard Cases

Hard cases is one of the topics in the field of legal theory and legal circles since ancient and modern times, as early as the ancient Greek period, Aristotle was more or less involved in the relevant issues of hard cases. Hart, a representative of legal positivism, has put forward the theory of the structure of language vacancy, to elaborate his own view of problem of hard cases. Dworkin discusses the constructive interpretation of the theory, and argued that the hard cases can also obtain the only solution. Habermas, on the basis of Dworkin’s theory of integrity, rights and constructive interpretation, developed the idea of coherence. Such theories of hard cases provide a reference for the treatment of hard cases in judicial practice. At the moment we are in a special period of social transition, various types of hard cases continue to emerge, and with the development of the network from the media, many cases have been exposed to quickly become a hot topic of social discussion. Thus, hard cases are the important issues that we need to face and can not be avoided.The important cause of the hard cases lies in the existence of the "vacant structure" in the language,and the problem that the law can not be directly in the place where the language "the vacancy structure" appears.The facts can not be determined, there are loopholes in the rules of law and the fact that it is not compatible with the fact that it is the three main type of hard cases. According to our country in recent years in the part of case analysis, summed up ways to deal with the hard cases in the judicial practice of China’s existing institutional conflicts, ignoring case justice, legitimacy and rationality relative imbalance and judging cases lack sufficient reasoning problems.In hard cases, legal hard cases and processing of the legitimate and reasonable conflicting hard cases are related to the question of the legitimacy and rationality, so it is clear that the two important factors that influence the judgment of the hard cases are legitimacy and rationality. Legitimacy needs to maintain the stability of the value of the law, the rationality of the need to pay attention to the case of justice. Two factors in the judicial is a contradiction repulsion phase, how to eliminate the tension between the two is an important issue that needs to be considered in the case of hard cases. Through the classification of the two factors, we can construct a model that is based on the legitimacy and rationality, so that different types of hard cases can be determined.The dual dimension of the hard cases in the judgment model contains two types of form and substance, formal legitimacy and rationality can be directly reflected in the referee instruments, and can be used as a basis for the legitimacy and rationality of the substance. The form of legitimacy and rationality of the need to achieve through judicial means. Substantive validity and rationality of the existence of subjective judgment factors, so, in the process of hard cases,the need to ensure the existence of the general public standard through the external judicial system. Therefore, the role of the dual dimensional model is not the same as the formula to enter the referee elements directly to obtain the results of the referee, but in the case of the referee to the direction of the guidelines and evaluation criteria.Back to the beginning of the problem of China’s hard cases in the referee, by drawing on the analysis of the dual dimension model of the hard cases, we can begin to improve the problems existing in the practice of the hard cases in our country from the system level and technical level. In the system level, the perfect judicial committee system can ensure the existence of general public standards in the process of hard cases; on the technical level, through the comprehensive use of legal technology to balance the case of justice and social justice, the use of procedural rules to make up for the lack of substantive rules brought about the legitimacy of the problem, using the demonstration method to eliminate the legal problem of the legal loopholes. Combination of system level and technical level, can make the hard cases of the referee results to the best of the best judgment model of the positive value.