As The "Reference" Of The Way Of Law Application

"Reference" is the legal identifier of reference provisions,which connects the reference elements and the referenced elements,refers to the application mode of the referenced elements,and sets the obligation for judges to apply the referenced elements.However,because the meaning of the legal identifier "reference" is not clear,judges do not know how to "reference" in judicial practice,and often avoid explaining whether to "reference",or clarifying the "reference" without revealing the process and reasons of its "reference";Moreover,due to the different nature,effectiveness and form of the referenced elements,there are internal differences in the actual application mode or how to "reference" of the referenced provisions,which should not be confused.In order to solve the problems of vague legislation,judicial evasion and mixed application of reference provisions,it is necessary to clarify the meaning of "reference" first.The meaning of "reference" of reference provisions is affected by the referenced elements of different types of reference provisions.Therefore,it is necessary to clarify the connotation of different reference provisions on the basis of the classification of reference provisions.Referential provisions can be divided into four categories: reference to general statutes,reference to administrative regulations,reference to guiding cases,and reference to non legal norms.The reason why legislators adopt the same legal markers to refer to different application methods of referenced elements in terms of nature,effectiveness and form is that in the four types of reference provisions,they all include the judicial discretion granted by legislation;The general semantic "reference and imitation" of "reference" conforms to the intention of legislation.Before the legislator has not formed a regulation scheme with sufficient confidence in the regulation of reference elements,the referenced elements can provide an alternative scheme for the legislator to solve the regulation of reference elements.Moreover,as a referential law,the referential provisions are different from the deterministic law and show different degrees of legislative certainty.In addition,they also undertake the functions of systematic legislation,responding to social openness and simple legislation.However,in addition to the common ground of the four reference provisions,we also need to see the differences between the four reference provisions.The four are different in the referenced elements,the stage and degree of the exercise of discretion,and the specific logical methods.Among them,the general statutory law refers to the applicable rules,which emphasizes that the judiciary is authorized to judge the degree of similarity under the premise of similar legislative drafting;On the basis of emphasizing the principle of judicial deference,administrative regulations judge the legitimacy of functions and powers,procedural legitimacy and whether it violates the superior law.Those who do not meet the conditions can choose not to apply;The guiding case reference is to authorize the judiciary to judge whether it is similar and the degree of similarity;The reference of non legal norms emphasizes the rationality and judgment in the sense of comparison.Based on the above differences and purposes,in order to improve the reference provisions in the future,we should adjust the legal markers,clarify the differences of the four types of reference provisions,refine the "reference" technology,and on this basis,require the judges to interpret the law,urge the judges to "reference",and realize the purpose of restricting the judges’ discretion and reasonable judicature.Referential regulation is an important technology for concise,responsive and systematic legislation,which reflects the degree of legal systematization and the maturity of judicial technology in a country to a certain extent.Referential provisions are widely stipulated in China’s legal system.In order to improve the rationality of legislation and the legitimacy and accuracy of justice,reserve technical and normative schemes for future legislation,and coordinate the contradiction between legal closure and social openness,we must seriously treat the reference provisions and clarify the types and application methods of the reference provisions.