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Folk Law and the Interests Balancing in Judicial Process

Author: WuZuo
Tutor: XieZuo；QuXiangZuo
School: Shandong University
Course: Legal Theory
Keywords: Folk Law Interest Measurement The judicial process
CLC: D90
Type: Master's thesis
Year: 2009
Downloads: 219
Quote: 1
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Abstract


The distinctive characteristics of rational practice of law subject, must be accompanied by the practice of the rule of law in our country consciously study the direction of the conversion. Calling from the value of the external to the internal standard research methodology from the ontology steering law, centrism from the legislative to the judicial centrism, constitute the three dimensions of Legal Studies Steering characterization. When we look from the outside world of the law regression to the internal problems of the law itself, from the legislative center and transferred to the judicial center, had to be a clear understanding of great importance to the study of the internal problems of the law is not equivalent to rule out the provisions of the law outside the whole world, the legal provisions can not solve all the problems. It the law conflict digestion and vulnerability to make up its own is unable to complete the inevitably can not get rid of the other standard complementary role. Civil law as an informal specification into the judicial process has inevitability. Civil law studies, mostly concentrated in stance from the sociology of law, law anthropology to analyze it as an objective existential ontological, static description or thinking of civil law. However, civil law only in the judicial dynamic run can from static to practical results, in association with the legal methods to provide effective solutions for the settlement of social disputes. Therefore, civil law also changes on the research-oriented. The interests of the measure as a special legal methods, their living space is that the pattern of conflict between the specification and thus brought about a conflict of interest. The plight of this approach is that its advocates do not find an effective way to measure interests, and that no specific basis to find the measure of interest. Investigated from the perspective of the body of civil law contain resource interests measurable. They Yun through w is within a certain range of common believe in and abide by social values ??reflected the mainstream social value orientation, it naturally became an important factor that must be weighed in the judge interests measure, civil law has stability, relatively mild features to make it easier for people psychological identity. Meanwhile, the adjustment mechanism of the rights and obligations of civil law, as legal norms, is also an interest of confirmation, allocation, adjustment mechanism, expand the measure of interest to prepare the necessary prerequisite. Ancient China the judicial \From the perspective of the dynamic operation, civil law first identification and analysis of a wide range of interests played an important role, and provide a reference for the protection of the spiritual interests. Secondly, in different contexts of conflict, civil law at the right time to enter the measurable benefits, difficult cases are properly referee. The existence of judicial mediation system for judges interests measurable expansion provides a good liberal operating environment, effectively easing the tensions between the judges of discretion and judicial restraint. Due to the characteristics of the civil law and our judicial system, judicial mediation process easier to play the value and role of dispute resolution. Civil law and the interests of the measure of this legal method, and also the judicial mediation the Field to find the right combination of opportunity. The introduction of the civil law, so that the interests of the measure in mediation, the judge to be more fully realized. Of course, civil law, whether it is its own inherent characteristics, or the impact on the functioning of the judiciary, there are inevitable limitations. The judges in the judicial process, should be accurate to draw the line between the two scales, truly play its due role in the civil law, and ultimately to restore the state of the balance of interests of the parties.

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CLC: > Political, legal > Legal > Theory of law (Law)
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