(1) supplemented according to the Constitution. Whether the court can apply the constitution to adjudicate cases has always been negative. However, the author believes that the preamble of the Constitution stipulates that all state organs, including the courts, must take the Constitution as the fundamental criterion for their activities, and the most important activity of the courts-trial activities must also take the Constitution as the fundamental criterion and legal basis. Therefore, it is possible to apply constitutional principles and invoke constitutional provisions in civil and administrative litigation cases. However, in order to safeguard the dignity of the constitution, it cannot be quoted at will. Only when there are no specific provisions in ordinary laws and the Constitution has principles and relevant spirit can it be cited as a supplementary law. In criminal cases, it is not necessary to invoke the Constitution for conviction and sentencing, but the constitutional provisions can be used as the direct legal basis for determining the defendant's innocence, otherwise the defendant will be deprived of the right to defend his innocence with the constitutional provisions. The Supreme Court's judicial interpretation of "Qi Yuling case" and "no responsibility for work-related injuries" is a good explanation.
(two) the basic principles and spirit of the applicable law. The objective existence of limitations of written law leaves room for judges' discretion. It is necessary to seek a new way to coordinate the relationship between legislation and judicature, that is, to determine some basic principles with universal application value and certain flexibility in departmental law according to the basic requirements of its adjusted social relations, and to limit the discretion to the scope required by the basic principles. Therefore, the basic principles of law play a role in overcoming the limitations of written law by granting and restricting judges' discretion.
The basic principles of law, as the norms of law and judging the behavior of the parties, are legally binding, which determines that the judicial organs can directly apply their judgments without specific legal norms, especially in civil cases. Although there are disputes among scholars and judicial practice, all countries have affirmed it in theory, legal provisions and judicial practice. The first precedent in China is the judgment of Shandong Provincial High Court on "Juxian Winery v. Wendeng Winery for Unfair Competition". (17) In addition, judging cases according to the spirit of law is also a common supplementary method.
(3) Expand legal sources. The source of law should not be closed, stick to the corner of statutory law, establish an open, flexible and diversified system of legal sources with statutory law as the main body and other legal sources as the supplement, and enhance the effectiveness and rigor of legal control over real life. Many countries with written laws regard unwritten laws such as customary laws, precedents and precedents as the most important supplementary sources of law. For example, the Italian Civil Code and the Civil Code of Taiwan Province Province stipulate the first article (18), which has a good effect in overcoming the aimlessness and non-GAI of written law. Our country also knows this now, such as the Civil Code of China drafted by scholars such as Liang Huixing? 6? 1 general provisions (draft proposal) have provisions in this regard. ( 19)
1. habit. Habit is a code of conduct spontaneously formed by people summing up experience and laws in long-term production and life, which came into being before written law and is the most primitive legal form. A considerable part of written laws such as contract law, marriage and family law are legal habits. In reality, there are a lot of habits in all aspects, even in emerging industries, there may be no rules, but there are habits. Habit is a law created by the people themselves, which contains great social adaptability, is the best implemented norm, basically does not need the coercion of the state, and is a natural supplementary material of law.
To judge a case with a custom as a supplementary source, the following conditions must be met: 1) The existence of the custom must be ascertained. The party who advocates invoking habits should bear the burden of proof for the existence of habits; 2) This habit must be confirmed and observed by the general public; 3) Habits must not violate the basic principles of law. Habits can be divided into good habits, progressive habits and conservative habits. When it is applied, it should be chosen according to the basic principles of the law, so that the case can be handled fairly. "Habits applicable to civil affairs are limited to those who do not violate public order and good customs." (20) 4) Custom should not be clearly defined in the statute. If it has been expressly stipulated, it will rise to statute law and become the direct source of law. In addition, customs and habits can be divided into general habits, local habits and national habits according to the scope of passage, and there are also special habits that only apply to special industries or social classes; We can't apply the customs of this place to other places, the customs of this nation to other nationalities, and the customs of people in special industries or classes to the general public.
It is worth noting that China's Contract Law clearly recognizes the legal effect of "trading habits", but it does not stipulate the confirmation and compilation of trading habits, which makes it basically in a disorderly state and difficult to apply in specific cases. "Unless there is evidence to the contrary, it should be presumed that the practices published in the official compilation of authorized institutions and groups are existing practices." (2 1) The Supreme Court, the State Administration for Industry and Commerce, the Federation of Industry and Commerce and other organs should further improve the assembly habits. In addition, the rules of trade associations, at least part of them, should be regarded as a form of trading habits.
2. Law. Holmes said: "The life of law lies not in logic, but in experience." As a "law created by judges", precedent is the main legal source of common law countries, and it was the official legal source in our history until the Republic of China. Because the precedent contains the spirit of judicial independence and is made by the judges at the front line of the trial, we can catch new situations and problems in judicial practice at any time, analyze the precedent quickly, abstract legal principles and rules, guide the trial work and provide reference for legislation; Be able to concretize abstract legal norms, accurately express legislative intentions, and solve complex and difficult cases with the most general legal principles; It can well prevent the situation of different judgments in the same case. Therefore, the precedent itself has the advantages of flexibility, convenience and unity corresponding to the defects of statute law, and nature and statute law have the best complementarity, which can maximize the creativity of judges and is an excellent way to improve their judicial ability.
After the founding of New China, due to political and other reasons, China implemented strict legalism, and the precedent system was criticized, denied and excluded in legal theory and judicial practice for decades. However, under such strict legal thinking and institutional arrangement, case law still affects our judicature in some form or even some thinking at some time, showing tenacious vitality. (22) Fully explain that written law can not be separated from the supplement of precedent. At present, the role of precedent has received unprecedented attention in China, but the actual situation is that although there is guidance from precedent, it is not standardized and perfect from selection to publication, and it cannot be directly cited in the judiciary, which makes the supplementary role of precedent not fully exerted.
3. law. Judging from the development history of civil law system, jurists and their legal theories play a leading role. (23) "For a long time, theory was the basic legal source of the Romano-Germanic Law Department, because the principles of law were mainly formulated in the universities from 13 to 19 ..." Therefore, the law of the civil law system is traditionally "the law of jurists". (24) Law itself is a science, and its basic theory is a summary of legal laws, which plays a universal and potential guiding role in trial practice. In legislation, mature legal theories are often directly formulated as laws (such as the general principles of criminal law and many provisions in contract law), and when the formulated laws lack relevant provisions, they can be directly cited as the basis for judging cases.
In recent years, it has become a practice for judges and lawyers to consult experts on difficult cases and invite experts to participate in relevant seminars. The opinions of experts and scholars have a more direct impact on the court's trial activities. (25) However, due to the limitations of systems and concepts (such as the deep-rooted non-binding academic principles), it is rare for modern civil law countries to directly quote the opinions of a scholar as the basis for judging a case, but its potential influence is very strong.
4. Public policy. Public policies such as strike hard, industry, trade, investment and competition have the characteristics of pertinence and flexibility, which can change at any time with the changes of social conditions, and have strong social adaptability, which not only meets the requirements of the times, but also is often the forerunner of the times, with distinctive characteristics of the times. It can not only guide the judicature macroscopically, but also has the function of concretization and filling the vacancy of law application, so it can effectively make up for the congenital deficiency of written law. Because of the variability of policies, we should be cautious when applying phased and temporary policies.
/lw/lw_view.asp？ No = 6532 & Page 2