Policy Based On Judgement

In our legal practice,policy is a very common concept.This word often appears in legal texts and judgments.Unlike other jurisdictions,Artical 6 of the General Principles of the Civil Law of 1986 clearly stipulates that policies can not only provide general guidelines for people's civil activities as a code of conduct,but legally grant the status of additional sources of law to the policy.Although in the newly promulgated Artical 10 of the General Principles of the Civil Law of 2017,the status of the sources of policy has been removed,in judicial practice,the judge still apply the policy after the General Principles of Civil Law of 2017 was issued.This thesis uses the PKULAW and Chinese Referee Web to sort out civil judgments in China,and finds that judges often invoke policy as the ground of judgement in judicial decisions.The methods of the judge's citing policies vary greatly because there is no clear provision about the policy in the law.Therefore,it is of great theoretical and practical value to go deep into cases,and dissect the paradigm of policies in civil adjudication,and then to explore the actual functions of policies in civil adjudication to fill gaps between theory and practice.This thesis adopts typed and empirical analysis methods.In the context of justice,according to the actual function of the policy in civil judgments,it is divided into a policy of reinforcing norms,a policy of supplementing norms,and a policy of replacing norms.Based on this,this thesis mainly answers two questions:Are the three functions of the policy playing legitimacy?And,based on the promulgation of Artical 10 of the"General Principles of Civil Law," can the policy continue to be used as a legal source or referee basis?In other words,whether the legal source status of the policy is based on legal authorization.In the first question,the first reinforcing function of the policy is that the judge invokes the policy as a supplementary and auxiliary to the legal norm.There is no dispute in both theoretical and practical circles.The second supplementary function is that the judge invokes policy provisions when there is no legal provision.Based on the objectivity of the existence of legal loopholes and the principle of the judge's refusal to reject the referee,this thesis recognizes the legitimacy of this function.However,we must pay attention to the identification of the scope of legal loopholes and how it needs to comply with the basic principles of the law.The third amendment function is that when the law has specific provisions on a certain item,the judge chooses to apply a policy document that conflicts with the legal provisions based on the pursuit of justice for the case.There is much controversy about the legitimacy of this function.It is discussed under the framework of formal rule of law and substantive rule of law.By analyzing the limitations of formal law in theory and practice,This thesis argues that substantive law can absorb the advantages of formal rule of law,and the factors of value judgment of substantive law can effectively overcome the limitations of formal rule of law.It is only in this case that the judge will bear more burden of argumentation.Regarding the second question,this thesis is based on the theory of legal origin.It considers the origin of the law in the context of the judiciary and argues that the source of the law is mainly used to resolve where the judge goes to find the law when judging cases and how to determine the origin of the law.Regarding the first point,where does the judge look for the origin of the law?This thesis distinguishes the origin of the law from the form of the law,and claims that the origin of the law is the process by which the law is formed through the origin.Therefore,the sources of the law include those before the law was formed,for instance habits,policies,concepts of justice,etc.The second point is how the judge determines the origin of the law.This thesis is based on the classification of the sources of the law and discusses the traditional dichotomy and the new dichotomy of the origin of the method proposed by scholar Wang Xiahao.The policy is considered to be the origin of informal legal sources and legal sources.In other words,it does not require the precondition of legal authorization,but its status or rank is relatively low.