| Compared with legal rules, the legal principle has its unique advantages such as achieving the case of justice, filling the legal gaps, overcoming the rigidity or stiffness of the rules, etc. To a certain extent, it avoids the separation between law and reality, and fills the gaps between the facts and the rules. Thus it achieves better control of social order. But the application of the legal principle also increases the uncertainty of the judicial and unpredictable, Weaken the consistency, stability and authority of the law, and it may even be possible to encourage judicial tyranny. So, the application of the legal principle only when the legal rules "can not" be applied.The lack of legal rules is the first case of that the legal rules "can not" be applied. The lack of the legal rules, that is, that there is a legal blank when a judge is in the trial of a case. Due to the relative stability of law and the change of social life, the new situation that the legislator has not foreseen will arise when the judge deals with a case. At this point, the judge can make a decision by virtue of the legal principle to make up for the loopholes in the law. The application of legal principles as a basis for decision is the low cost, high efficiency and can guarantee the fair of handling the case.The fuzziness of legal rules is the second case of that the legal rules "can not" be applied. The fuzziness of legal rules, that is, for a certain case, although there are legal rules to apply, the rules are ambiguous or vague. The judge must interpret the law if the legal rules are ambiguous or vague. The interpretation of the legal rules requires the guidance of the principle of law, because the legal principle represents the spirit and value orientation of the law. The interpretation of fuzzy rules by the judges in the guidance of the principle of law makes the abstract law better to adapt to the specific circumstances of the case and ensures a reasonable judgment.The conflict of legal rules is the third case of that the legal rules "can not" be applied. The conflict of legal rules, that is, two and more legal rules can be applied to specific cases, and different rules will lead to different results. When there is a conflict between rules, the judges should try to find the legal principles behind the rules as the value of the rules, weigh the weight of these principles in the case, and then choose the most important principle and the legal rules under this principle as the basis for the decision, thus ensuring a reasonable judgment.The application of the legal rules leading to obvious injustice in a specific case is the fourth case of that the legal rules "can not" be applied. When the application of the legal rules leads to obvious injustice in a specific case, the judge must make "reasonable" by the way of an exception with the help of legal principles. German scholar Alexy put forward "stronger reason to create an exception" why the judge apply the legal principles and does not apply to the rule of law. The rule of law is always under the guidance of certain legal principles to be worked out, if the judge does not choose this situation generally applicable "rule of law", and opt-in "legal principles" of the exception, it must submit sufficient priority applicable law the principle of reason, and with the legal principles as the rule of law to be weighed against the value of support, proof of legal principles to be applied in the amount sufficient to exceed the amount of the principle behind the rule of law. |
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