Study On The Judicial Application Of Legal Principles

Since the last century,the hot legal principle jurisprudence is concerned,the principle of Dworkin’s theory of the craze of theoretical research in the field of the law,Alexy made a further improvement on the basis of Dworkin,proposed a "unique view of optimal order".With the development of the theory of legal principle,formed by Alexy the measure model and represented by Kauffman type mode gradually in the process of the application.Also,the application of legal principles in our country has been the focus of scholars,but because of our late research on applicable law principles on start,and mostly based in study abroad,not yet out of the basic the application of the principle of foreign framework,this paper will first review,summarize research results of legal principles drawn from abroad,worthy of our judicial practice experience,refer to The application of the guiding principle in the judicial practice.Although the principles of law and the rule of law as a legal norm,but it can overcome the rigid rules,in the absence of rules can be regarded as a supplement,when solving the conflict norms also play an important role.The current judicial applicable legal principles,although the provisions in the law contains a lot of legal principles however,due to the limitation of statute law,the legal principles can not be used as the judge basis directly.Due to the lack of a feasible pattern of legal principles applicable to the guidelines,in order to avoid the abuse of the principle,application of legal principles had to take evasive attitude.With the continuous development of society,all kinds of social contradictions appear.The judge in the trial process will encounter difficulties,so the application of legal principles in the judicial process has become an inevitable choice,has a great theoretical significance.The law is not only to achieve formal justice,substantive justice to the case,in order to study the legal principles of how to play a role in the judicial practice,starting from the theory of Dworkin and Alexy on the distinction between rules and principles,focus on the analysis of the measurement model and the type of the applicable law principles,by comparison on the two,a summary of the legal principles applicable to the "measure type" mode.If the measure model is a rational model,the type of model is an empirical model,integrated model "measure type"mode is a combination of reason and experience,in order to overcome the arbitrariness and the type of the hysteresis measurement model.Through this study,hope can for the legal principle in our country judicial application opens a new train of thought and the legal principles as the basis of judgment is introduced into the judicial referee.Which can not only effectively rules to fill loopholes,help the judge hearing difficult cases,improve judicial efficiency,but also to realize the case of substantive justice,maintain the stability and authority of law.