Study On Theory And Application Of Sociological Interpretation Under The Context Of The Rule Of Law In China

Sociological interpretation,as a legal method,has been further applied in practice,along with the application of the principle of "unity of legal effect and social effect" in judicial practice.However,in the process of legal interpretation,there is a bad tendency in the specific application of sociological interpretation that judges often replace legal effects with social effects so as to break through legal rules and regulations;Due to the lack of specific rules and social effect evaluation method,in the course of the consideration of social effect,there is a problem of unscrupulously consideration;in addition,whether sociological interpretation is essentially the same as the ancient judicial tradition of justice,law and human organic coordination?If it is different,how should the two sides in judicial practice be compatible?In view of the above questions,this paper studies the sociological interpretation of China's judicial practice from four parts.The first part analyzes why in the practice of the rule of law in contemporary China needs sociology interpretation from the following four aspects:inheriting the traditional legal civilization,coping with social transformation,building the modern rule of law order and overcoming the drawbacks of the legal doctrine.The second part discusses the basic theory and operating mechanism of the sociological interpretation.From the perspective of legal rules,sociological interpretation is an effective mechanism for the dynamic balance between the stability and change of the law rules.From the perspective of case fact,sociological interpretation is a kind of legal completion mechanism resulting from the influence of social order in the process of interaction between norms and facts.In judicial practice,as a legal method,sociological interpretation is a legal interpretation method based on the choice of multiple legal interpretations on the basis of the possibility that the best social effect may be produced in the present practice.The third part analyzes the basic problems and Countermeasures in the application of Sociological Interpretation from the judicial practice of our country.The basic problems are mainly manifested in the following aspects:first,in the judicial practice,the social effect is too subjective and the operability is not strong;second,the social effect of judicial decisions easily leads to the loss of the formal validity of the referee.Specific countermeasures:On the one hand,the judge will need to change the subjective forecast to the judicial social effects to seek legal rules and pluralistic social norms coherence;on the other hand,the judges need to adhere to the social effect consideration within the scope of possible meaning of the rule of law,It is necessary to respect the existing law as a prerequisite for the consideration of the social effect.The fourth part summarizes the basic principles of the application of sociological interpretation in the context of the rule of law in China on the basis of the analysis of the foregoing analysis.Adhering to the formal rule of law needs to follow the principle of legality and complementarity,and the principle of coherence and objectivity should be followed in order to avoid the unscrupulant consideration of social effects.The principles of emotional rationality and demonstration should be followed in the context of Chinese rule of law.In a word,in our judicial practice,sociological interpretation should be applied,first of all,judges should accurately locate the application of sociological interpretation.They need to make clear that the consideration of social consequences should be carried out within the scope of legal rules,and sociological interpretation is a beneficial supplement to the insufficiency of the formal rule of law methodology.Secondly,in the process of application of sociological interpretation,the consideration of social effect should be taken as the basic consideration in seeking the integration of legal rules and multiple social norms.Finally,Finally,in social interpretation,social effects should be concerned with people's habitual thinking in moral and emotional considerations.In the sociological interpretation,the moral appeals of the parties and public opinion should be comprehensively weighed and rationally responded.On the premise of maintaining the authority of the law,we should consider the social factors such as moral customs,human feelings and other social factors according to the tradition of our country,and seek the coordination and integration between the reason and the jurisprudence,which will help the acceptance and Realization of the judicial referee...