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The Judicial Dissolve On Civil Difficult Cases

Posted on:2018-10-30Degree:MasterType:Thesis
Country:ChinaCandidate:Z Y ZhangFull Text:PDF
GTID:2346330515990257Subject:Applied law
Abstract/Summary:PDF Full Text Request
Of the trial activities in the real case complex to the referee for the judge is more universal,and the judge in the face of the many difficult cases and cannot escape liability by refusing to the referee.As the last safeguard citizens' rights,the purpose of his right to appeal is when individual rights damage,through the exercise of the litigation right to safeguard their own rights infringement of the right of return to the previous state.Judge for the case of a referee is similar to a kind of behavior art,it can reflect human have espoused values such as fairness,justice,and for the referee process of hard cases more able to reflect the value of this kind of "art",the judge will own judicial experience and wisdom into the whole process of the referee,with unique insights and creative thinking that occur in the case of obstacles.Traditional syllogism reasoning model cannot help judge cases results is deduced,in response to the proceedings in the applicable law is difficult,legitimacy and rationality of conflict and a series of problem,the judges reasonable resolve urgently needs hard case the referee rules,based on the "hard cases" as foothold,through the connotation from the definition,characteristics,classification,produce the basic aspects,such as the reason of such as what is a hard case? What is the basic classification,the forming reason of it? What specific difficulties in the case the referee? With the development of the society changes,the judge degree are increasing in number and complexity of hard cases,how to deal with? The problems such as the depth,and on this basis,through the comparative study,the related system outside from three aspects: the legislative,judicial,system construction summary the realistic way to solve difficult cases in China.This paper mainly divided into four parts.The first part,first of all,this paper probes into the concept of hard case and its academic controversy,in the case of clear its connotation,further introduces the characteristics of the hard case,classification,and from two aspects of internal and external hard cases are analyzed.The second part analyzes to civil case,seeking to judge in the face of fuzzy,norms conflict law,legal loophole situations such as the solution,and analyzes the problems and shortcomings.The third part through to the outside legal tradition and related system,for our country in resolving difficult cases the referee dilemma provides reference.The fourth part probes into the hard case to resolve the specific path,as a judicial judgment in resolving difficult cases the source of the legal basis,from the legislation level,reduce the rules at the beginning of the set of semantic gaps,and overlapping of different legislative subject content on legislation to reduce hard cases may be particularly important.As the main part of difficult cases,the judge in the judicial referee for a variety of legal method using technical is indispensable,and as the basis and prerequisite for the judge judge skill,the subjective initiative of the guarantee of reasonable use need to be sure.In addition to this,the judge as a judge of the case,judge the quality and the result is bound to be affected by human factors,the judge individual judicial ability and the level of high and low,whether can independently exercise the judicial power in the hands of,sometimes for hard case the referee may play a decisive role,so in the specific system level to establish the judge professional guarantee system,promote the development of the judge professional road,clear the barriers to entry of the judge professional and perfect current case guidance system,etc.For the resolution of hard cases are indispensable.
Keywords/Search Tags:Civil Difficult Cases, Legal Method, Discretion, Guiding Cases
PDF Full Text Request
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