On The Judicial Application Of My Country’s Legal Theory

The judicial application of legal doctrine has existed for a long time in the history of the rule of law in China and the West,and legal doctrine has occupied an important position in the legal origin system.The legal doctrine of jurists has played a vital role in the process of western legal codification.With the completion of legal codification,the doctrine of jurist law has withdrawn from the formal legal origin system.Although it is no longer a formal legal source,as an informal legal source,the doctrine can still play a complementary role.So far,doctrine has been used as a complementary source of law in the legislation of many countries.Although China has not made clear legislative provisions on the source status of the supplementary law of the doctrine,there are a large number of references to the doctrine as resources for judgment and argument in judicial practice.This disconnect makes many problems in the judicial application of China’s legal doctrine urgently need to be resolved.This article intends to discuss the judicial application of legal doctrine from the following sections and make suggestions for perfecting it.The first part is the retrospect of the legal application of legal doctrine in the history of legal system.Whether it is the exposition of the five major Roman jurists,the Confucianization of Han law in China,and the enactment of Zhang Dulu all over the country,are examples of the judicial application of legal doctrine.The history of judicial application of legal doctrine in the history of legal systems in the West and China shows that both the West and China have a historical tradition of judicial application of legal doctrine.At the same time,this part organizes and summarizes the relevant literature on the legal application of legal doctrine,and introduces that the research purpose of this article is to provide suggestions for the further improvement of the judicial application of legal doctrine.The second part is the observation and summarization of the status quo of China’s judicial application of legal theory,combined with relevant cases to explore the method,existing problems and reasons of the judicial application of the theory.According to the different references,the application of China’s legal doctrine mainly includes the invocation of legal theory,legal doctrine and expert legal opinions.This article analyzes the cases in practice and finds that the legal doctrine has different expressions,inferences,and monopoly use by the court.Regarding the above-mentioned problems,this article believes that the reason is that China’s current general speaking mechanism has not been established and the importance of legal doctrine is insufficient.The third part discusses the theoretical basis of the judicial application of the theory,and constructs theoretical support for the judicial application of the theory This part mainly discusses from three aspects.First,it discusses the legal origin of the legal theory,and provides theoretical support for the judicial application of the legal theory.Secondly,it discusses the controversy of judicial application of general legal theory in the theoretical field,and discusses the theoretical basis of judicial application of general legal theory through the induction of different academic opinions.Finally,this article discusses the judicial application of the most controversial legal expert opinion in judicial application.The fourth part is to discuss the effectiveness of the doctrine in the judiciary This part of the article discusses the judicial effectiveness of the doctrine of law from the two perspectives of judgment resources and argumentation resources.The resources of the referee refer to that the doctrine can become the basis for the judicial decision,and the resources of the argument refer to that the doctrine can enhance the rationality of the judgment and the rationality in the process of the argument.The fifth part puts forward the suggestion of this article to improve the judicial application of the doctrine on the basis of the foregoing discussion.This article believes that the application of legal doctrine should have its steps and restrictions on use.It must not violate the principle of public order and good customs,use legal doctrine according to a certain rank,and indicate the source when judging the doctrine.In order to give full play to the role of legal doctrine in judicial application,we should also play the role of guiding cases,and at the same time,we should construct the mechanism of general doctrine of law in China.