On The Application Of Jurisprudence In The Civil Judgment Of The Dali Yuan

Since modern times,European countries have taken the codification of civil law as the ideal form of the evolution of general private law,but the code is always faced with the risk of lagging behind due to social evolution,and at the same time,judges cannot refuse to try because the law is not clear.Therefore,countries usually set up "third source of law" clauses outside the statutory laws to keep the whole civil law system open.This practice profoundly affected the civil law system of modern Japan.In the eighth year of the Meiji era(1875),the Taizhengguan Proclamation No.103 "Experience of Judicial Affairs" stipulated that civil judgments should be made according to customs if there is no written law,and those without customs should be judged by reasoning.Organization has become the key to maintaining the openness of the civil law system.At the end of the Qing Dynasty,the Japanese scholar Matsuoka Yi was drafting the first three parts of the draft civil law.Among them,the first article of the "General Principles" made it clear: "Civil matters,which are not prescribed by this law,are subject to customary law,and those without customary law,are subject to the principles." The principles derived from the Japanese civil law became the source of judicial law and entered the Chinese legal system.However,the Draft Civil Law of the Qing Dynasty was not promulgated and the Qing court was destroyed.During the period of the Beiyang government,the Congress,as the legislature,was politically battered and had no time to take into account the basic civil legislation,and people at that time believed that "the matter of compiling the code was very important,and it was not easy to complete the preparation and promulgation of the civil code without gathering Chinese and foreign scholars and accumulating years of investigation and research".In 1913,the Supreme Court,as the highest judicial organ at that time,adopted the legal meaning of the Draft Civil Law of the Qing Dynasty,and recognized the doctrine as the "third source of law" for civil adjudication.When there is no written law or customary law to follow,the doctrine can be applied for adjudication.Dali Yuan originally intended to take order as a supplement to written law and customary law.However,from the first year of the Republic of China(1912)to the 19 th year of the Republic of China(1930)when the Civil Law of the Republic of China was promulgated,the written laws and regulations on which civil judgments were based were mainly "the civil effective part of the current law".However,as a continuation of the traditional old law,the "civil effective part of the current law" still takes the maintenance of family ethics,kinship and identity as the main purpose of the law,which is difficult to adapt to the new social situation and solve new civil legal problems.However,due to the different customs in different regions,it is difficult to form a unified judgment standard.Therefore,under the special historical conditions without written law,the principle of standard ranking third has become an indispensable basis in the civil judgment of the Dali Court,even surpassing the "written law" or "customary law" and becoming the "first source of law" in fact.However,the application of Dali to the principle is not smooth.First of all,the Draft Civil Law of the Qing Dynasty and the jurisprudence of the Dali Court did not build a coherent theoretical system at the legislative level,and the principle itself lacked a clear and unified scope of content.Secondly,due to the Dali Shangzi No.64 case,the application order of the doctrine lags behind the "civil effective part of the current law" and "customary law",with the weakest effect.Finally,the interpretation of the meaning of order involves the continuation of legal norms.Under the regime of separation of powers at that time,"judge makes law" has a congenital theoretical dilemma.In order to overcome the difficult problem of the application of order,the Dali Court made use of the unified legal interpretation system to make the precedents and interpretation examples play the function of "making laws" in the practical sense,and solved the theoretical dilemma of "judge making laws".On this basis,the Dali has systematically constructed the origin of Tiaoli.It has defined the scope of Tiaoli by referring to the Draft Civil Law of the Qing Dynasty,introducing western legal principles,reforming traditional reasoning,citing foreign legislation,and comparing various theories.In addition,in order to avoid the conflict between the application order of the principle and the "civil effective part of the current law" and the customary law,the Dali also cleverly changed the application order of the principle by means of borrowing the legal text,applying analogy and mediation,so that it can be applied preferentially.The application of Dali Yuan to order contains the thoughts of strengthening the autonomy of private law,attaching importance to economic circulation and public order,respecting traditional justice and ethics,and has the new and old attributes.On the one hand,it introduces new jurisprudence,enriches the source of civil adjudication law,and makes up for the deficiencies of written law and customary law.This new legal principle is limited by the legal principles already embodied or hidden in the overall legal order of civil law,and does not extend to abstract and vague natural legal principles or general legal principles.On the other hand,the Dali also takes into account the traditional moral principles and ethics.In order to avoid the "acclimatization" of the new legal principles in Chinese society,the Dali Court,in the process of applying the principles,also referred to the tradition of "discretion and justice" in ancient Chinese civil judgments,and took the principles and human feelings that can be understood by people’s normal cognition as the boundary,and did not extend to the incomparable principles and ethics.Dali Yuan’s consideration of Chinese and foreign jurisprudence for more than ten years has not only laid a solid foundation for the formulation of the Civil Law of the Republic of China,but also promoted the establishment of a rightcentered legal standard.This way of introducing western civil law thoughts through the judiciary has the characteristics of rationality,appropriateness and flexibility,which better adapted to the social situation at that time."In view of the past,it is helpful to rule the law",the Dali Yuan communicates the Chinese and foreign legal systems in a "methodical" way to interpret the practice of promoting legal and even social change.At the moment when the Civil Code has been promulgated and implemented,it still has certain historical reference significance for building a stable and open civil law system and improving the guiding case system.