The Generalization And Regulation Of Balancing Of Interests In Judicial

As the introduction of balancing of interests in China,it has had a great impact on legal practice and theoretical research.Whether as a method of judicial in departmental law or a method of law in theory,there is more and more discussion on the balancing of interests.Everyone have their own interpretation so that this method has inevitably overused in many judicial situation.However,with the increase of related research of balancing of interests,it is found that the application of it in judicial practice has become more and more disorder.balancing of interests has already started to move towards generalization and even alienation.The reason is that in the studies,scholars seem to pay more attention to the“interests”rather than“balancing”.And the interest has so many meanings that people has different recognition about it,under this circumstance,it is no wonder that scholars can not draw a common conclusion.In order to solve these problem,we should make sure that the method return to the right way.In other words,related academic research should clarify the theoretical basis of balancing of interests and pay attention to the study of "balancing theory",which is the attempts of this article.There are two points of this article.First of all,the generalization of balancing of interests in justice is derive from it's complicated theories.In addition to Heck's interest law,scholars believe that Japan's interest law,American legal realism,socialist jurisprudence,and evaluative jurisprudence developed from the amendment of Hake's interest law are also the theoretical basis of Balancing ofinterests.In that case,the methods derived from different theoretical foundations are also different,which has led to the development of balancing of interests in different states.Second,the research on the balancing of interests in academic circles mainly focuses on the study of “interests”,while neglecting the exploration of“balancing”.As the matter of fact,in the concept of balancing of interests,the discussion of “interest”is only an noumenal epistemology,but the “balancing”is actual a methodology.Therefore,as a methodology,balancing of interests must focus on“balancing”.And this article will be written with the following six parts:Part 1 is about the “introduction”,mainly put forward the problem of in the application of balancing of interests.Generally speaking,it has been abused and becoming generalization,and we should make it back to the right track.Part 2,as well as chapter 1,analyzes the current situation of the generalization of balancing of interests in justice.Which is,specifically,it`s application has been higher frequency and wider range.The generalized method also have some character,which is have more functions and uneven using.Part 3 analyzes the reasons for the generalization of balancing of interests in justice.This section first analyzes the theoretical reasons for the generalization of balancing of interests in China's judicature,mainly because the theoretical basis of it is too numerous,and scholars' researches have their own opinions,which have not formed a unified theoretical foundation.However,most scholars' understanding of it has focused on the identification of interests and formed the "interest theory",but few people have mentioned the original "balancing " of it.This research on "interest theory" has led to the reality of high-frequency use of interest measurement in practice.Secondly,there are many practical reasons for the generalization of balancing of interests,such as some institutional,social public opinion,and judicial reasons,which have also led to the frequent appearance of interest measurement as a "golden method".Each legal method expresses its views on the law.The generalization of balancing of interests actually results from the separation of theories of it,which in turn exacerbates the generalization of practice.The interactionbetween the practice and theory of interest measurement in justice has led to various attitudes of interest measurement in judicial practice.In the long run,balancing of interests may become a general method,losing its original meaning.Part 4 discusses the theoretical amendment of the generalized balancing of interests in China's justice.The first is to integrate various interest measurement theories to arrive at the benefit measurement.In fact,in order to achieve individual case justice,combining the relationship between "interest" and "measurement",it is concluded that the balancing of interests is a process of rationalization of decision-making based on judicial judgment.Finally,it analyzes the possible misunderstandings of the theory of balancing of interests as the rationalization of decision-making.Part 5 discusses the methodological amendment of the measurement of generalized balancing of interests in China's justice.After clarifying that benefit measurement is a decision,this section explains how to construct a balancing of interests centered on the "balancing view" in applicable methods.First of all,it is necessary to clarify the relevant factors such as the premise,content,and result formation of decision-making balancing.Second,it is clear how to use the "balancing concept" as the main method to measure how to properly handle the issue of interest.Finally,it is clear that the impact of rationality on the de-generalization of it is decisive.Part 6 is the conclusion.Summarize the conclusions of this article,point out that with the advancement of the rule of law in China,the advantages and disadvantages of the it as a legal method,the correct use of it will be beneficial to the rule of law,otherwise it will damage judicial authority and credibility.On the path to the rule of law,any judicial approach needs to be taken seriously.