| Article 10 of the General Principles of Civil Law does not stipulate "jurisprudence",which is the content of the civil law system.It has both the content of the principles of civil law and the significance of the methodology of civil law.It is the necessary accomplishment of the legal person,especially the judge.The process of judging a case is to use jurisprudence to connotation,interpretation,argumentation and continuation.It is the function of jurisprudence not to refuse a referee.Personnel are changeable and laws are limited.Only legal principles can help the poor of laws and customs.Jurisprudence is indispensable.The General Principles of Civil Law do not stipulate that it is the source of civil law.It is unreasonable.It is a loophole in law and deserves careful review.In addition to the introduction and conclusion,this paper is divided into five parts:The first part mainly introduces the application of legal principles in judicial practice in China,and further raises the problems arising from the absence of legal sources in the General Principles of Civil Law.Firstly,starting from the case of Chen and Lu guardianship dispute,this paper raises the problem of the lack of legal sources in the General Principles of Civil Law and should be reviewed.Through the analysis of big data,the author finds that the invocation of jurisprudence in judicial practice is manifested in two aspects: one is to play a positive role in the interpretation of the law and the continuation of the law;the other is the abuse of jurisprudence in the form of oath and evasion from the jurisprudence.It further concludes that the absence of jurisprudence in the General Principles of Civil Law will lead to problems such as insufficient empirical law,weak theoretical proof of interpretation of judgments,and increasingly serious abuse and misuse of jurisprudence.In the second part,the author mainly introduces the definition of jurisprudence in view of the unclear connotation and difficult extension of jurisprudence.Including: the specific connotation of jurisprudence;the relationship between jurisprudence and the basic principles of civil law,judicial interpretation,guiding cases,doctrines;the basic functions of legal interpretation and legal continuation.Through its definition,it reflects the legal origin of jurisprudence,so as to review the lack of jurisprudence in the General Principles of Civil Law.The third part mainly summarizes the extraterritorial experience and theoretical basis of jurisprudence as the source of the General Principles of Civil Law.This paper summarizes the extraterritorial development process and legislative examples of the sources of jurisprudence,the development process of the sources of law in China’s civil legislation and the theoretical viewpoints of scholars regarding jurisprudence as the sources of law,and reviews the shortcomings of the provisions of the sources of law in China’s General Principles of Civil Law from the side.The fourth part mainly analyses the necessity of jurisprudence as the source of law.If the source of jurisprudence is absent,the fundamental contradiction of insufficient empirical law will be insurmountable;the misuse and abuse of jurisprudence will hinder the realization of judicial justice in cases;the inadequate interpretation of civil judgment documents will lead to the decline of judicial credibility,and the necessity of jurisprudence determines that the source system of civil law in China should adopt a three-level model.The fifth part mainly carries on the review from the jurisprudence judicial application angle.As the implementer of judicial application of jurisprudence,judges have the technical operation basis of applicable jurisprudence.In the specific application,we should first establish a thinking mode based on the principle of equality;secondly,we should form a joint force between doctrine and precedent;lastly,it is reasonable to take foreign legislation or precedent doctrine as a reference for the application of law. |
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