Os princípios também causam problemas na China. Leia a seguinte resenha sobre a dissertação "The Theory of Principle-applied Judgment: Based on the questions of the current judicial practical theories in China", publicada na Latest Science:
As the result that the positive laws could not provide the judgments grounds for all the cases,the judges always have to face upon the dilemma to be loyal or be betrayed to the law. Therefore,the current active judicature becomes a common sense in current situation.
And whether the next step would be the space-exited of judicial discretion outside the rules as Hart said or be the necessary limits to avoid the abuses by judges and what extent should be the limits to the active judicature.
All of these questions in practices and theories guide us to the direction of the principle judgment in western judicature.The construction of legal system turns into the period of transformation in China and the judicial practices would go ahead.
The courts in different ranks have made some number of cases fitted with legal principles "bravely",but the activities of principle judgments haven't been emphasized by the academia.There are a lot of arguments regarding these judgments in some different areas today and the public and the experts both question upon their certainty and the justification.
So the problem of "how the legal principles apply" is an issue that the courts must encounter.
After the attempts by the case of the heritage in Luzhou,the current studies and researches are still rest on the introductions of the western prevalent practices and theories, which is leave far away.So it's necessary to make the positive researches on the current conditions about the legal principles judgments in order to find out the origins and the Chinese contexts for this problem and get the some further arrangements and perfections for this sort of judgments.These are the tasks the author tries to achieve in this dissertation. And the main structures and approaches in this paper are following:
Chapter 1 is to analyze the classical cases in the bulletin of Supreme Court as the samples to explore the situation regarding the principle judgments in China that the most principal-applied cases take place in the civil areas and the principles are usually the basic rules in the civil law as the principles of honesty and fair not the general principle with the certain rights and obligations.In the method of application of principles,many applied cases are lacking of the abundant legal reasoning in the judgments and the arguments of the legal rules but to make the judgments depend on the principles directly except for some special cases.The random applications of the principles trigger the high ratios of the second or the final judgments and the different judgments over the same case by the different courts bring out a lot of questions by the public in the classical cases.
And we may find that the worries by the public on these judgments are the following:the principle-applied cases would be opposite the direction of the certainty of judgment and also be intent to the abyss of the moral judgment or the cover for the judges to abuse the principles and the most dangerous one is that the principle-applied in one single case justly would damages the certainty of the whole legal system deadly.
Chapter 2 is to discuss the reasons that make the principle judgments into the trap:the first one is that the ambiguous and ethical factors among the principle itself cause the uncertainty of the principle-applied judgments;the second one is that the similarity between the traditional model of the motional judgments and the principle-applied cases which induct the undemonstrated facts as the principles in judgments acceptably and could not get rid of this judgment model even nowadays while the "difference" of the two models gives the distinguished factor essentially.Therefore,the modern transformation in the tradition model should be exhibited in order to analyze the acceptance and misinterpretation of western principle judgments:at the beginning of the R.C.,Chinese judicature absorbed the legislated model of European continent as the word of "jurisprudence" and "principle" introduced into the legal system.
Thus the way of civil law in the legislation would be the principles at first alone the tradition of the classical model but not the article of the legal resources out of the written rules like the 1st Article of the regional civil law in Taiwan. Since the reconstruction of legal system in Chinese mainland in 80's of 20th century, the influential theory is the Dworkin's principles in laws in the academia.
Unfortunately, a few of the scholars in China realize the great differences between the Dworkin's theory and the traditional theory concerning the principle-applied judgments. Comparatively, the continental model is more similar with the real situations in Chinese principle judgments and oppositely there are few specific models about the continental principle judgments in Chinese legal communities and the works of introductions are launched in recent years.
So this sort of "misinterpretations" and "post-interpretations" make the effects on the indifferent attitudes in academia and the orderless situation in the applications. The last two parts in the paper are the outlets for the principle-applied judgment. At present situation that the low capacity of the judges in China, we may research the resolution in the following two aspects:the perfection of methods and the regulation of process. On the first side, we should clear out the connotation of the legal principle primarily and on the second one we should discuss the applied fields and methods of the principle judgments as the samples of the continental model.
And the fields are the following three:one is that the pre-understanding of the legal principle by judges;two is that the judicial reasoning of legal principle and the methods as the judicial rules of legal principle.And the focus is the later one in this part such as the chances,the specific ways,the construction of case models and the balance for the conflicts of principles etc.As for the regulation of process in principle judgments, we should learn form the legislations of civil laws in the continent and Taiwan area at first to establish the orders and legal resources outside the legal rules as a certain direction for the discretion.
Surely some scholars have raised that the "quality of the facts" could be the standard and the others considered that the 1st Article of civil law in Taiwan should be the "principle" for the out-of-rules judgments. After the comments about the ideas above,the author believes that we should take the common sense about "legal principle" as the last legal resource for this kind of judgments better under the situations of China and the foreign states and areas.
Finally the regulation of judicial process about the principle judgments is discussed as the following points:one is to enforce the arguments in the judicial papers to guarantee the legal principle changed into the practical legal reasoning;two is to enhance the authority and acceptance for the principle judgments; three is to enhance the judicial ranks for these principles-applied cases in light of the low professional qualities in some regional courts; four is to establish the certain boundaries of the cases in the bulletin based on the classical models of the legal principle-applied cases for the certainty of these judgments.
What is the last illustration in this paper is that how to get a correct judicial judgment would be a very perplex question and the principles-applied cases with the great debates have more problems in this direction. Examining the basis, there are various factors among the angle of "morality" about the judges such as the problem of the magnificent judicial system and the judicial corruptions. So this dissertation could not give a comprehensive study from all the perspectives but only chose the standpoint of methodology of principle-applied judgments in order to improve the "talents" of judges in these cases,which is an important issue emphasized by this text.
