The Way Of The Concretization Of Uncertain Legal Concepts

The legal concept is the most basic material for constructing legal norms and legal systems.When legislators formulate and design legal norms and systems in accordance with "social ideals" and use them to adjust the state and society,the legal concept also assumes the task of regulating the law.In order to achieve the regulation and control tasks of the law,people always hope to have a logically rigorous and complete self-sufficient system built on the Legal concept determined by connotation.Within this legal system,the application of the law and the settlement of disputes can be completed with the help of simple judicial syllogism.However,the above-mentioned ideas are often difficult to establish in reality,and the legal rules formulated by human beings are full of legal concepts with extremely uncertain connotations and extensions,especially in the civil law that pursues the value of private law autonomy,due to many reasons such as the ambiguity and ambiguity of language,the complexity and change of social life,the limitation of human cognitive ability,and the deliberate arrangement of legislators based on institutions or systemsThe particularity of the uncertain legal concept compared with the definite legal concept is that it has the characteristics of high generality,extreme uncertainty of connotation and extension,and openness in application.According to the difference between the descriptive component and the value evaluation component in the legal concept,the uncertain legal concept can be divided into descriptive uncertain legal concept and value uncertain legal concept,but the possible scope of both meanings is very broad and changing.These characteristics of uncertain legal concepts determine that those who apply the law are often unable to determine its meaning or scope of application and use it as a prerequisite for judicial syllogism to apply to specific cases only by interpreting literal words.According to the general theory of legal interpretation,the application of uncertain legal concepts first needs to be concreted,that is,to define the connotation and extension of the uncertain legal concepts in specific cases.Due to the similarities in characteristics,nature,and application of the uncertain legal concept and the general clause,the method of application of the two is also collectively referred to as "concretion of uncertain legal concept and general clause".In the broad legal interpretation,the difference between the concrete definition of uncertain legal concepts and narrow legal interpretation and loophole filling is a legal method between the narrow legal interpretation and loophole supplement.The emergence of uncertain legal concepts is inevitable.Uncertain legal concepts exist in all departmental laws and regulations,but compared with administrative law and criminal law,the substantive methods of concrete uncertain legal concepts are more typical in civil law.The concretization of uncertain legal concepts in administrative law mainly includes the concretization of administrative organs in the process of law enforcement and judicial review by judges.There are significant differences between the concretized subjects,procedures,methods,etc.and civil law.In the criminal law,due to the specificity of the object of regulation,the scope of adjustment and the status of the legal system,the number and specificity of uncertain legal concepts are restricted by the statutory principles of criminal punishment and the clarity of criminal law.The concretization of uncertain legal concepts in civil law is carried out by judges in the litigation process,and the basic principles of fairness and equality and private law autonomy in civil law determine that there are more uncertain legal concepts and fewer restrictions on concretization.Although concretization is necessary in the process of application of uncertain legal concepts,uncontrolled concretization can easily lead to arbitrary and arbitrary justice,influencing the stability of the law and substantial fairness and justice.Regulating the concretization of uncertain legal concepts and making them controllable has become an inevitable choice for us to pursue judicial justice,and also an inevitable requirement for us to realize the ideal of the rule of law.The substantive methods of uncertain legal concept concrete in civil law mainly include typed method and value supplement method.The typed method mainly includes the establishment of a typed system of uncertain legal concepts and the analogy of uncertain legal concepts to pending cases with the help of typed systems or typed cases.The establishment of a typed system needs to follow the "cases-case groups-typed case system" process or path,from case to case group requires judges to apply analogy based on type cases,and from case groups to typed case system requires judges or Scholars perform classification,sorting,summarization and systematic work.The analogy application by means of type cases requires the judge to compare the similarity between the pending case and the type case;the analogy application by means of the typed system requires the judge to compare the similarity of the pending case with a certain type of factual characteristics or constituent requirements.After determining the similarity,the judge can refer to the judgment ideas in the type of case or the judgment method of a certain type of case,apply the uncertain legal concept to the pending case,and complete the concretization of uncertain legal concepts.The value supplement method requires the judge to extract value evaluation from the informal legal sources related to the case After considering the facts of the case,social effects and purposes,economic analysis,substantive fairness and justice and other factors and under the premise of following the value guidance made by the legislator in the concept of uncertain law.The value supplement method makes a conclusion after determining the level of conflicting values through case measurement and comparing the benefits of the same level which is that the supplementary value judgment is embodied and the uncertain legal concept is applied to the pending caseHowever,there are some limitations in the substantive method of uncertain legal concepts of civil law.For example,there may be lag in the typed case system,contradictions between the type cases,and inevitably subject of the value supplement In this regard,we can overcome the limitations of the actualized method to a certain extent through some measures which include the narrow interpretation method before the specification,the synergy between the typed method and the value supplement method in the specification process,and the full reasoning and rationalization after the specification Argumentation,etc.In civil judicial practice,judges should abide by certain operational procedures in the specific application of uncertain legal concepts of civil law in individual cases:firstly,determine the facts of the case and the scope of the legal provisions to be applied;Secondly,the narrow legal interpretation method is used to provide early preparation for the concretization and to ensure the standardization of the concretization conclusions,such as using textual interpretation methods to define the general scope of uncertain legal concepts,using systematic interpretation methods to ensure the normative attributes of uncertain legal concepts,and using purpose interpretation methods to explore the normative purposes of uncertain legal concepts.Third,between the two substantive methods of concretization,priority should be given to analogy based on type cases or typed systems for legal certainty and stability;if the typed system lags or there are no type cases,we can Use value supplement methods to make supplementary value judgments to achieve the flexibility and adaptability of legal norms;finally,Apply the concretization conclusion to the pending case,and combine the judicial system such as judgement document reasoning to fully reason and demonstrate the concretization process of uncertain legal concepts and the judicial syllogism inference process,and improve the openness and specificity of the concretization process,the objectivity of the method and the acceptability of the concrete result.