Pre-positive Legal Principle As Judicial Basis

In judicial practice,especially in hard cases,judges often quote legal principles to compensate the deficiency of legal rules.However,some of the legal principles are not stipulated in the statute law definitely,such as the principle of the consistency of rights and obligations in private law,the principle of unification of subjectivity and objectivity in public law,the principle of no judge without plaintiff in procedural law,and so on.These principles are called pre-positive legal principles in Chinese academic community.But in China,a country adopting statute law,whether the pre-positive legal principle can be judicial basis playing a decisive role in judgment,and if possible,what is the rule of application of such principles,are all questions that remain open.This article is divided into six parts.The first part raises the question,that is,whether a judge obliged with adjudication pursuant to law can apply pre-positive legal principle as basis for judgment;also giving a summary of current domestic and international development on the topic.The second part defines the concept of pre-positive legal principle.By separately investigating the semantics of legal principle and statute law,and distinguishing the pre-positive legal principles from similar concepts like jurisprudence and moral principles,we point out that the core connotation of pre-positive legal principles are legal norms that are not explicitly stipulated or authorized by law,and have abstract contents representing certain value.The third part analyses the legitimacy of using pre-positive legal principle as judicial basis.Since pre-positive legal principles are not clearly stipulated by law,they may lead to problems like abusing of power by judges,hindering social cooperation and wasting social costs.However,there are two theories to support such principles as the basis for judgment.The first theory,represented by Dworkin,considers the implied legal principles to be part of the legal norms and constitute judge's pre-understanding of law;the latter argues that pre-positive legal principles can be applied when statute law are no longer available.The fourth part investigates the judicial practice of pre-positive legal principles.Combined with the cases in Communique of the Supreme People s Court from 2000 to 2017,the thesis summarizes the current status and the problems of its judicial application.According to the different sources,pre-positive legal principles applied in judicial practice are classified and analyzed,explaining that such principles can be used both as judicial basis and reason in judgment.The fifth part proposes the judicial application rules of pre-positive legal principles.Pre-positive legal principles can be divided into two categories:principles that belong to received opinions and those have not been received.The former,such as the principle of unification of subjectivity and objectivity,enjoys a kind of authority based on consensus within the legal occupational groups and even in society.It is a restriction on the discretion of judges,so there is no need to impose heavy responsibility of reasoning.The latter is essentially an activity to create new norms.There is a risk of judges' arbitrariness,so it should be subject to the constraints of application preconditions and the regulation of legal methods.The sixth part summarizes the view of this thesis.