Research On The "Similarity" Standard And Its Application Under The Exemplified Legislative Model

Exemplary legislation represented by the model of "enumerate + generalize" is not uncommon in our country’s legislative activities.In the field of administrative law,as a commonly used legislative technique,this method has open interpretation and authorization attributes,and reflects The balance between legal clarity and conciseness.It leaves room for interpretation for other situations that are not exhaustively listed but are in line with the original intent of the legislation and should be equally applicable.In practice,administrative interpretation and judicial interpretation can be used to make up for the lag of the law.The conflict in the interpretation conclusion makes the application of the law quite confused due to the inconsistent interpretation work.In 2004,the Supreme People’s Court’s "Minutes of the Symposium on the Application of Laws and Norms in the Trial of Administrative Cases" clearly proposed the "similarity" standard as a judicial interpretation document,which has not been effectively implemented.The Supreme Court issued Guiding Cases No.6 and No.94,which have strengthened the applicability of the "similarity" standard in exemplary legislative interpretation to a certain extent.The "similarity" standard is not an interpretation method.It is not used to interpret general terms but to restore the omitted content of the law.It is derived through retrospective legislation and can be tested by traditional legal reasoning methods and legal interpretation methods.,It can be more intuitive to judge whether the pending matters meet the conclusive standard of the applicable scope of the law,and it can be used as a formula that can be directly applied in judicial practice.It is related to and distinguished from expanded interpretation,purposive expansion,analogy interpretation,etc.It is the inevitable interpretation result of the aforementioned interpretation method.The application of the "similarity" standard is mainly embodied in the two connotations of "consistent type" and "equal degree".The value characteristic of "type" hidden behind the law is its core feature,and "equal degree" is an important range.The essence of the boundary control means is the search for the core of value.In the process of application,the scope of application of the law is gradually clarified through the search for the upper commonality—the common denominator—and its interaction with the listed items.In judicial practice,it can be applied to the judicial review of lower-level laws that violate the higher-level laws,the incidental review of regulatory documents,and the review of the legality of specific administrative acts.At the same time,based on the progressiveness of conceptual levels such as generalization,enumeration,and exemplification legislation,and the commonality of interpretation concepts,the "similarity" standard also has reference significance for the interpretation of uncertain legal concepts.In the field of administrative law,there are still many points that need attention in the application of the "similarity" standard.In consideration of the balance of cost and benefit,it is of course necessary to interpret the rule of “should be more sensible”with caution.Although there is also a process of “analogy” between the two,the“similarity” standard emphasizes “a considerable degree” and does not have connotations.Of course the explanation of the degree of "severity".At the same time,on the basis of the judicial respect for administrative discretion,it should focus on the impact of policy discretion on administrative interpretation.