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Research on Balancing of Interests in Judicial Process

Author: KongZhiQiang
Tutor: LiGuiLin；ShenJiShi
School: East China University of Political Science
Course: Legal Theory
Keywords: Judicial Process Balancing of Interest Legitimacy
CLC: D916
Type: Master's thesis
Year: 2011
Downloads: 118
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Abstract


The theory of interest balancing has been a sustained attention and research in both the theory and practical areas since it was born. At the same time,the judge has also practiced the theory in the judicial process. This thesis limits the research direction in judicial process,and claims that the balancing of interests in judicial process is a kind of legal thinking method of the judge,with strong subjective features. With subjectivity,it has attracted attention in both supporters and opposers that how to guarantee its correctness or objectivity. This thesis mainly carries on the analysis in the four parts.The first chapter mainly introduces the emergence and development of the balancing of interests. It briefly introduces the theories in German,the United States and Japan with comments.The second chapter defines the balancing of interests in judicial process,and claims that the interest balancing is a legal thinking method of a judge , and it is a kind of subjective activity.The chapter demonstrates the necessity of interest balancing through the explanation of legal texts,valuable addition,the close of legal loopholes and the process of legal reasoning. The third chapter presents the use of the balancing of interests in judicial process, and defines the scope of balancing of interests,and claims that balancing of interests is existing throughout the judicial process with its modest bounds,and analyses the steps of balancing of interests with study of Larenz’s views. Meanwhile,the chapter confirmed the standards of balancing of interests by analysis of specific case,and mainly analyses the legal standard and other standard.The fourth chapter demonstrates the legitimacy of balancing of interests,and it is the core section of the thesis.Firstly,it rethinks the legitimacy of balancing of interests,and deems that the legitimacy can be examined with certain standards. Secondly,the thesis justify the judgment by the theory of jurisprudenz.It introduces the assumptions of the legitimacy of the existing law and balancing of interests on the basis of the existing law.Thirdly,it discusses the restrictions of interior and exterior on judge when he is applying the balancing of interests. Internal restrictions mainly are the development of judges’professionalism;External restrictions are mainly judge reasons and the procedural constraints.

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CLC: > Political, legal > Legal > UNIVERSITY > Justice system
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