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Research On The Objectivity And Subjectivity Of Applying Law

Posted on:2019-04-01Degree:MasterType:Thesis
Country:ChinaCandidate:X ZhangFull Text:PDF
GTID:2346330542497674Subject:Legal theory
Abstract/Summary:PDF Full Text Request
The law as one of the social norms,if you want to go from the paper to the real play its normative and safeguarding role,applying law is a necessary path,so correct applying law is very important to bring into playing the function of legal norms.Judging from the judicial practice,applying law does show the inconsistency of the results,and show the characteristics of objectivity and subjectivity.From the point of theory,academic circles analyse the reasons of applying law showing objectivity and subjectivity,mainly from the perspective of human cognition,and few scholars to expound the legal language as a special language phenomenon has its linguistic features,and thus lead to applying law showing objectivity and subjectivity.Based on the above theoretical and practical status quo,this paper first introduces the definition and interrelation of the subjectivity and objectivity of the applying law.By defining the connotation of applying law,and combining with practice to analyze the whole process of applying law,then summarizes abstractly the connotation of applying law of objectivity and subjectivity,and analyze the objectivity and subjectivity of applying law according to typical cases of applying law.Then based on the above summary,discuss the relationship between these two characteristics in the priority,unity and value orientation.Secondly,the author analyzes the causes of the objectivity and subjectivity of applying law.Based on the legislative language is a special manifestation of language in the legal world,from the perspective of linguistics,author summarizes the legislative language has the characteristics of the relative clarity,fuzziness and different understanding of language of people,and focuses on the analysis of the characteristics of the language how to lead to applying law with objectivity and subjectivity.At the same time,it can not be ignored that the existence of legal loopholes makes the subjectivity of applying law,and the corresponding discussion is also carried out.Thirdly,the author introduces the positive function and negative influence of the applying law with objectivity and subjectivity.On the one hand,this article discusses the objectivity of applying law has positive effects in realizing of formal rule of law,enhancing the certainty of the law,and promoting law-abiding,and also has negative influence in realizing the adaptability of the law and the substantive fairness.On the other hand,discussing the subjectivity of applying law has positive functions in strengthening the legal adaptability,realizing the essence of the rule of law and promoting the perfection of legislation.At the same time,the subjectivity of applying law has some negative effects.It is not conducive to the uniform application of the law,the realization of the law predictability,the adjudication accepted by the litigants,and is easy to induce the judicial corruption.Finally,Based on the above,a safeguard system concerning the correct applying law is proposed.Based on the above discussion and the related theory of Judicial Reform,this part mainly gives some suggestions from four aspects to ensure the correctness of applying law.First,improving the legal career system,promoting the formation of the legal profession community,to ensure that judges applying law has a unified value.The second is to promote people’s participation,mainly through the improvement of trial and jury system,to promote "public opinion" to participate in the process of applying law inside and outside the judicial system.Third,improving the case guidance system,unifying the selection criteria of the case guidance system,and expanding the scope of selection,so as to further realize applying law with uniform.Fourthly,On the one hand,the clarity of the legislative language is enhanced by improving the legislative techniques or by reducing the ambiguity of the legislative language;on the other hand,the clarity of the legal language is strengthened by strengthening the legislative and judicial interpretations.Then make use of the clarity of legal language to promote the uniform of applying law.
Keywords/Search Tags:Applying law, The Subjectivity of Applying Law, The Objectivity of Applying Law
PDF Full Text Request
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