Research On The Legal Doctrine As Source Of Law

The legal doctrine was an important part of the world's legal system in history,and played an important role in promoting the healthy development of legal society in the process of social development.The legal doctrine as a source of law,whether in ancient society,or in the present context of the legal society,have a certain position.Under the background of the legal society in China,can the legal doctrine become one of the legal sources in judicial process under the normative legal basis of the judicial trial,is the problem to be discussed in this paper.And through the history of the source of doctrine,and the description of the manifestations in China today,affirms the legal doctrine as a source of law,then discusses the functions and the judicial application of the legal doctrine.This paper is divided into seven parts:The connotation of legal source is the first thing that needs to be discussed.Informal legal source is different from the formal legal source,which includes all the factors that can affect the objective rights.Based on this,this paper through a controversial judgment in order to put forward the discussion that whether legal doctrine can be as a source of the judicial process.The connotation of the legal doctrine is the basis of the paper.From the perspective of judicial practice,the legal doctrine refers to these persons,which regards law as a profession(legal scholars,judges,lawyers,etc.),to interpret law system systematically,analytically and reasonably.It is meaningful to have a clear understanding of the legal doctrine and comparison with other concepts.In ancient China and West,the legal doctrine has been widely used as the basis of referee,even it is the law when the law is not complete,and the legal doctrine has the same effect with the law.In today's society,both the civil law countries and the common law countries,the legal doctrines are cited as part of the legal system and to be used in the judicial process.This shows,the legal doctrine could not be ignored as an integral part during the judicial practice in modern society.Under the background of the formation of the Chinese characteristics socialist legal system,scholars' urgent hope for the reform of legal education is the intrinsic motivation of the legal doctrine to be a source of law.The legal doctrine in the context of China's rule of law,t is mainly expressed as some academic points of view,which appear in academic works and academic articles,and the statements in the guiding case that explain the terminology and the meanings in laws,the reason is the judges are pursuing more for the substantive justice in the judicial trial.The functions of the legal doctrine in the judicial trial is reflected in the following:helping to prove the judicial decision,helping to reduce the burden on the judge,helping to resist extrajudicial pressure,helping to reveal the intrinsic meaning of the law and helping to achieve justice.The judicial application of the legal doctrine is the ultimate value of this paper.The application of the doctrine is as follows:when the legal system has legal ambiguity,legal conflict or legal loopholes.In the application of the legal doctrine,the premise is that the judge should know the legal dogmatic.Following this paper lists the Chinese and foreign judgments that refer to the legal doctrine.There are two cases:the situation of quoting only the standpoint of legal doctrine,and the situation of quoting the standpoint and justification of legal doctrine.Through the legal doctrine,the interpretation of the legal articles to be clearer and better acted on the judiciary,and through the doctrine system,the legal system is interpreted as a meaningful and accurate normative system.In the application of laws,citing the legal doctrine to prove the judgments,which not only increase the conviction of the judiciary,but also have a great significance in society development.The use of the legal doctrine in law education and judicial referee is one of the important conditions to promote legal dogmatic and one of the necessary condition for the legal system.