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Research On Practical Problems Of Interests-balancing In The Judicial Process

Posted on:2021-05-07Degree:MasterType:Thesis
Country:ChinaCandidate:H ZhangFull Text:PDF
GTID:2416330602977933Subject:Legal theory
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Although there is a clear understanding of the concept and importance of Interests-balancing in China,there is still room for exploration on the limitation and standardization of interests-balancing.Under the background of the new era,the public put forward higher requirements for the proper disposal of hard cases,and the relevant theories and operational approach of interests-balancing still need to be followed up in time.Facing with the opportunities and challenges,we should set out from the limit of interests-balancing,establish the judicial subject status of judges,get out of the "incommensurable interests" circle,and establish a set of normative system that meets the needs of the practice of the rule of law.In order to achieve the unity of substantive justice and social justice in the judicial activities,and realize the goal and value of interests-balancing.At first,the thesis sorts out the basic theory of interests-balancing,including the concept,category and necessity of interests-balancing.The first one as a method,basically as a method to supplement the legal loopholes,which is usually manifested in the choice of different interpretations under the same law,emphasizing legal justice;the second one as a methodology,not rigidly adhere to the provisions of the law itself,but paying more attention to the function of social factors for judicial settlement of disputes,as a thought or guiding principle,emphasizing social justice.By distinguishing the two theories,we can form a more comprehensive understanding of interests-balancing.Then,while affirming the importance of interests-balancing,the thesis points out the potential risks that may accompany it,and advocates that the application of interests-balancing in the field of public law should be more cautious.At the same time,it emphasizes that judges should follow the value orientation such as fairness and justice to highlight the rule of law to the greatest extent.After the thesis points out that there are theoretical problems of interest incommensurability and judicial activism and discretion through the development of relevant interests behind the hard cases.At the end of the thesis,aiming at the incommensurability of interests,combined with the method of the economics of law,it makes a quantitative analysis of the interests involved in the case,and provides a more comprehensive reference for judges to measure and compare.Combined with the current judicial situation in our country,it is emphasized that the construction of judges should be further strengthened.In order to help judges better use interests-balancing in hard cases,we should use technical means to assist in the "complicated and simple diversion" of cases while improving judges' ability.Finally,the thesis discussed that the current trial system of our country limits the use of the judge's interests-balancing.Therefore,we need to clarify the relationship between the judge and the court.While giving the judge the independent and active trial power,we need to strengthen the demonstration and public reasoning,so that the subjective interests-balancing is placed under the public's judgment,and restrict the possible abuse of discretion.So far,the thesis has made its own attempt and efforts to solve the problems of interests-balancing in the judicial practice of our country.
Keywords/Search Tags:Interests-balancing, Application of law, Hard cases
PDF Full Text Request
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