Legal thinking and proviso
Zhan Hao
A legal person in practice (including a quasi-legal person facing the judicial examination) should have an independent method to solve disputes and problems by law, which is different from the general public. The reason why a legal person is a legal person is that legal methods, legal language and legal thinking are essential. Of the three, legal thinking is the most needed. Therefore, trying to prepare for the exam and take the exam with legal thinking will benefit you a lot.
Law examination has become a trend after the examination of different subjects, which makes legal thinking a necessary condition for the examination. In the departmental examination, the formation and application of legal thinking also helps candidates to calmly deal with and check for gaps.
Judicial examination is an examination about judicial professional qualification. Judging from the setting of examination questions in the judicial examination, except for the expository questions (subjective questions) in recent years, most of the questions are objective multiple-choice questions and most of them are case-based questions. This thinking of case analysis and judgment is closer to that of judicial professionals. Taking the analysis of rights and obligations as a clue, it emphasizes that legitimacy is superior to objectivity, formal rationality is superior to substantive rationality, procedural justice is superior to substantive justice, and theory is superior to conclusion; Pursuing norms and objective effects; Emphasize logic and experience; Knowledge thinking that emphasizes micro-analysis and judicial perspective ... these are the practical applications of legal thinking. If we can use this kind of thinking spontaneously and consciously in the exam, your next answer will be invincible.
The "proviso" in the legislative expression is the concrete expression of legal thinking, which should attract enough attention from every examinee. "proviso" refers to the syntactic pattern of "but" and "but" as turning conjunctions in legislative terms, indicating exceptions or behavioral premises. Similarly, the author further magnifies the phenomenon of "proviso" and thinks that all general exceptions are also the focus of examination. Although there are no words "but" and "but" in this exception, its way of thinking is the same as "but book"
Where there are general provisions, there are special provisions, and where there is universality, there are exceptions. The concrete and applicable legal thinking of pursuing fairness and micro-justice requires legal persons to pay attention to exceptions and proviso besides general provisions. In addition, the examination of the proviso and exception clauses, on the one hand, can examine whether the candidates' thinking is GAI and meticulous, on the other hand, it also meets the requirements of legal thinking. More appropriately, the proviso and the special examination are in line with the characteristics of large number of questions, many test sites and objectification in the judicial examination.
So, what reason do we not pay more attention to "proviso" and "exception"?
(Example) National Judicial Examination in 2004 (III)/Question 58/Multiple Choice Questions
After one party breaches the contract, the observant party requires it to continue to perform the liability for breach of contract. In which of the following circumstances does the people's court not support the request of the observant party?
A the debts of the defaulting party are non-monetary debts. B. the subject matter of the debt is not suitable for compulsory performance. C. the cost of continuing to perform is too high. D the breaching party has paid liquidated damages or compensated for losses.
The answer is BC. Article 110 of the Contract Law of People's Republic of China (PRC) stipulates: "If one party fails to perform non-monetary debts or the performance of non-monetary debts is not in conformity with the agreement, the other party may demand performance, except for one of the following circumstances: (1) It cannot be performed legally or in fact; (2) The subject matter of the debt is not suitable for compulsory performance or the cost of performance is too high; (3) The creditor fails to demand performance within a reasonable period of time. " This question tests the standard "proviso" content.
(Example) National Judicial Examination in 2003 (III)/Question 65/Multiple Choice Questions
A clothing sales contract dispute between Company A of Jilin City and Company B of Changchun City shall be arbitrated by Beijing Arbitration Commission. Both parties agree and request the arbitration tribunal not to specify the following items in the award. Which of the following requests can the arbitration tribunal grant?
A. Request for arbitration B. Facts in dispute C. Reasons for award D. Arbitration fee
The answer is BC. Article 54 of the Arbitration Law of People's Republic of China (PRC) stipulates: "The arbitration claim, the disputed facts, the reasons for the award, the result of the award, the burden of arbitration fees and the date of the award shall be clearly stated in the award. If the parties are unwilling to specify the disputed facts and reasons for the award in the agreement, they may not specify them. The award shall be signed by the arbitrator and sealed by the Arbitration Commission. An arbitrator who disagrees with the award may or may not sign. "
This question tests the exception that Article 54 does not write "disputed facts" and "reasons for adjudication".
(Example) 2004 National Judicial Examination (II)/No.40/Multiple Choice Questions
According to the provisions of the Lawyers Law, to apply for a lawyer's practice certificate, the judicial administrative organ shall make a decision on whether to issue it within 30 days from the date of accepting the application. In accordance with the provisions of the Administrative Licensing Law, an administrative licensing decision shall be made within 20 days from the date of accepting the application for administrative licensing. In early July 2004, Zhang applied to the Provincial Department of Justice for a lawyer's practice license. The correct approach of the Ministry of Justice is:
A the lawyer's law shall be applied, and a decision on whether to grant or not shall be made within 30 days. B the administrative licensing law shall be applied, and a decision on whether to grant or not shall be made within 20 days. C. You can choose to apply the provisions of the Lawyers Law or the Administrative Licensing Law on the time limit to make a decision. D due to the inconsistency of the time limit stipulated by the law, a decision can be made after the decision is submitted to the National People's Congress Standing Committee (NPCSC).
The answer is a. Paragraph 1 of Article 42 of the Administrative Licensing Law of People's Republic of China (PRC) stipulates: "Except for those who can make an administrative licensing decision on the spot, the administrative organ shall make an administrative licensing decision within 20 days from the date of accepting the application for administrative licensing. If a decision cannot be made within twenty days, it may be extended for ten days with the approval of the person in charge of the administrative organ, and the applicant shall be informed of the reasons for the extension. However, if laws and regulations provide otherwise, those provisions shall prevail. " Article 11 of the Lawyers Law of People's Republic of China (PRC) stipulates: "An applicant who applies for a lawyer's practice certificate shall be issued a lawyer's practice certificate within 30 days from the date of receiving the application after being examined by the judicial administrative department of People's Republic of China (PRC) at or above the province, autonomous region or municipality directly under the Central Government and meeting the requirements stipulated in this law; Those who do not meet the requirements stipulated in this Law shall not be issued a lawyer's practice certificate, and shall notify the applicant in writing within 30 days from the date of receiving the application. "
There is a proviso in Article 42 of People's Republic of China (PRC) Administrative Licensing Law, so Article 11 of People's Republic of China (PRC) Lawyers Law can be applied mutatis mutandis. The design angle of this question is good, and there are cross-departmental testing methods.
If there is commonality, there must be particularity, and if there are principles, there are mostly exceptions. As legal persons, we pursue standardization and generality, but we also emphasize micro-analysis when we see micro-knowledge. When studying laws and regulations, please ask candidates to know more about the contents and exceptions of the proviso and remember more. And those one-sided generalizations often take advantage of our negligence and slackness in the proviso and particularity provisions, which makes people lose points in carelessness.
When understanding and studying the proviso and exception, we should pay special attention to the following points: ① The content of the proviso or exception in the law, combined with the context or text of the article, constitutes a whole legal norm. (2) When remembering, we must systematically understand the proviso and exception clauses with the text and general rules, otherwise it may lead to confusion of thinking. ③ Attention should be paid to the specific role of the contents of the proviso in legal norms, whether it is an exception or a restriction or supplement, but whether the contents of the proviso are aimed at the above or the text.
The legal system is like a logical tree, with branches and leaves connected and intertwined. It forms a relatively stable structure with close connection and super internal logic. Omitting various provisos and exceptions will split this huge logical system.
Take some time to comment on the proviso and exception.
What is the meaning of "proviso" in criminal law? In criminal law, "proviso" refers to the exception or restriction of this article.
China's criminal law is written law. In criminal law provisions, the word "but" is often used when the second half of the same clause needs to make opposite, exceptional, supplementary or restrictive provisions to the previous paragraph, and the words after "but" are called "proviso". Only by accurately understanding the role of "proviso" in criminal law provisions can we better understand the significance of criminal law provisions.
Contrary to the previous paragraph. Article 13 of the Criminal Law stipulates that anything that endangers the integrity and security of the state and territory is a crime, but if the circumstances are obviously minor and the harm is not great, it is not considered a crime. The part after the "proviso" in this article is contrary to the previous part.
The relationship with the previous paragraph is an exception. Article 8 of the Criminal Law stipulates that this law can be applied to foreigners who commit crimes against People's Republic of China (PRC) countries or citizens outside the territory of People's Republic of China (PRC), and the minimum penalty stipulated in this law is fixed-term imprisonment of more than three years, except those who are not punished according to the laws of the place where the crime is committed. The "proviso" in this article represents the exception stipulated in the preceding paragraph, that is, the act that is not punished according to the law of the place where the crime is committed is the exception in the preceding paragraph, and the criminal law of our country is not applicable.
The last paragraph expresses a restrictive relationship. Article 73 of the Criminal Law stipulates that the probation period of criminal detention is more than one year and less than two months. The "proviso" in this article is a restriction on the previous paragraph.
Express the complementary relationship with the previous paragraph. Article 37 of the Criminal Law stipulates that those who do not need to be punished for minor crimes may be exempted from criminal punishment, but according to the different circumstances of the case, they may be admonished or ordered to make a statement of repentance. This "proviso" is a supplement to the previous paragraph.
It can be seen that the "proviso" expresses a different relationship from the previous part in different provisions, and the understanding of "proviso" can better understand the legislative intention and the essence of criminal law; At the same time, in the interpretation and application of criminal law, the role of "proviso" should not be ignored, and the meaning of "proviso" in law should be accurately understood and analyzed.
What does endorsement mean in law? Endorsement is a kind of bill behavior and an important way to transfer bill rights. Endorsements can be divided into two categories according to their purposes: one is transfer endorsement, that is, endorsement aimed at transferring the rights of bills, and the other is non-transfer endorsement, that is, endorsement aimed at establishing entrusted collection or bill pledge. All commercial bills can be transferred by endorsement, and the endorser is responsible for ensuring the subsequent payment after endorsing the bill. When the bill is not paid, the endorser shall pay off (1) the amount that the bill refuses to pay; (2) Interest calculated from the due date or the date of presentment for payment to the settlement date according to the interest rate stipulated by the People's Bank of China; (three) the cost of obtaining the relevant refusal certificate and issuing the notice. Endorsement is an important form, and the following items must be recorded in the endorsement: (1) the name of the endorsee; (2) Signature of endorser. If one of the above matters is not recorded, the endorsement is invalid. When endorsing, the date of endorsement shall be indicated. If the date of endorsement is not specified, it shall be deemed to have been endorsed before the maturity date of the bill. If the words "entrusted collection" are recorded in the endorsement, the endorsee has the right to exercise the right to entrust the bill on behalf of the endorser. However, the endorsee may not transfer the rights of the bill of exchange by endorsement. A bill of exchange can be pledged. When pledging, the word "pledge" shall be recorded by endorsement. When the endorsee realizes his pledge right according to law, he may exercise the right to draft. If the drawer of a bill records the words "no circulation" on the front of the bill, the bill shall not be circulated (lose its circulation). If the direct heir endorses the transfer, the drawer is not responsible for the endorsee of the direct heir, and the bank will not accept the bill presented by the endorsee for payment or entrusted collection. If the endorser of a bill records the words "non-negotiable" in the column of the endorser of the bill, and his subsequent endorsers endorse the words "non-negotiable", the endorser who records the words "non-negotiable" is not liable for the subsequent endorsee. Banknote is limited to endorsement and transfer within its clearing area. Endorsement shall not be conditional. Where conditions are attached to the endorsement, the attached conditions are not valid for the bill. An endorsement to transfer a part of a bill of exchange or an endorsement to transfer the amount of the bill to two or more persons respectively is invalid. Where a bill of exchange is refused payment or the time limit for payment expires, it may not be endorsed and transferred. Where a bill is transferred by endorsement, the endorser shall bear the bill liability. Endorsement should be recorded on the back of the bill or post-it notes, not on the front of the bill. If the endorsement column is not enough for endorsement, you can use a self-adhesive sheet with a unified format and paste it at the specified bonding place on the bill voucher. The first person on the note should sign the draft and the note. If the endorsement is recorded on the front of the bill, the endorsement is invalid. Because the endorsement is recorded on the front of the bill, it will be impossible to determine whether the endorser's signature is an endorsement act, an acceptance act or a guarantee act, so the validity of the signature cannot be confirmed.
But what does the book mean? Definition: The part under "but" or "but" in a legal provision indicates the exception or restriction of the provision [1]. The "proviso" in the legislative expression is the concrete expression of legal thinking, which should be paid enough attention to by every judicial examination candidate. "proviso" refers to the syntactic pattern of "but" and "but" as turning conjunctions in legislative terms, indicating exceptions or behavioral premises. Similarly, the author further magnifies the phenomenon of "proviso" and thinks that all general exceptions are also the focus of examination. Although there are no words "but" and "but" in this exception, its way of thinking is the same as "but book" "Legal proviso" and "non-legal proviso" are also widely used in current laws and regulations, but some deviations will occur if they are used carelessly. From the perspective of laws and regulations, it is helpful for the formulation, implementation and understanding of current relevant laws and regulations to carefully analyze and summarize some characteristics of proviso sentences and non-verb sentences in the use process. As a turning conjunction, "Dan" is a special condition for legal exemption, and so is the contract. There are many such clauses in the contract law, which are all understood in this way.
What does the list mean in law? Calendar of pending cases.
catalogue
Interrogation table
1. the litigation schedule of the court or a specific department of the court. In the case of the main (non-exclusive) list, the parties have indicated that they want the matter to be recorded for trial, or that they are ready for trial. In contrast, entering the special list led to the progress of the case being controlled. Directions as to the trial list: Rules of the High Court (Chapter 4A), Order 34; Order 34 of the Rules of the District Court (Cap 336H). 2. A document that lists in chronological order the matters to be tried by a specific court on a certain day.
1. Records of legal proceedings conducted by a court or a specific court. As far as the list of major (non-specialized) trials is concerned, the parties have indicated that they wish to arrange the trial time or are ready for the trial. In contrast, entering the special interrogation desk leads to the case being controlled by its progress. Notes on various trial lists: Order 34 of the Rules of the High Court (Chapter 4A); Order 34 of the Rules of the District Court (Cap 336H). 2. On a specific date, the documents arranged in chronological order will be taken to a specific court. Noun (short for noun)
tabulation/listing
Local calendar of pending cases. A court may have several lists of different types of cases. Therefore, in the High Court, there are thrones without juries, juries and short-term lawsuits. A case was put on the list after being assigned for trial.
What is the meaning of "proviso" in criminal law? "proviso" is a legal term.
Proviso: in the legal provisions, after this article, the words stating that there are exceptions or some additional conditions. Because there is often the word "Dan" before the sentence, it is named.
Such as the Criminal Law of People's Republic of China (PRC).
Article 8 This Law may be applied to foreigners who commit crimes against People's Republic of China (PRC) or People's Republic of China (PRC) countries or citizens outside the territory of People's Republic of China (PRC), provided that the minimum penalty stipulated in this Law is fixed-term imprisonment of not less than three years, except those who are not punished according to the laws of the place where the crime is committed.
At the end of this article, "except those who are not punished according to the law of the place where the crime is committed" is added, but "proviso".
If the same clause expresses three meanings, they are called the first paragraph, the middle paragraph and the last paragraph (as in Article 29).
But most books are exceptions, restrictions, opposites or supplementary provisions to the previous paragraph. Mainly includes the following situations:
1. It has a special relationship with the previous paragraph (article 8).
2. It constitutes a restrictive relationship with the preceding paragraph (Article 73 1 and 2). 3. It is complementary to the preceding paragraph (Article 37).
What does refusal mean in law? Concepts in negotiable instrument law.
This abbreviation does not seem to be a legal term. Is it short for bank refusing to withdraw money?
What do you mean by "soldiers and representatives" in law?
Subscription representative
Warranties and representations
Subscription representative
What is the legal meaning of debt? The specific rights and obligations between the parties stipulated in the contract or law. The concept of debt in the sense of civil law is different from that in life, that is, it refers not only to the loan relationship, but to the rights and obligations between people arising from legal facts such as contracts and tort. In a debt relationship, the person who enjoys the right is called the creditor.
The person who assumes the obligation is called the debtor; In bilateral contracts, they are debtors of creditor's rights. The object to which the creditor's right and the debtor's debt point is called the object of debt. The rights enjoyed by creditors are called creditor's rights, and the obligations undertaken by debtors are called debts. Creditor's rights and debts are two inseparable aspects in the relationship between debts. They exist correspondingly and cannot exist independently of each other. Debt is the sum of creditor's rights and debts. Therefore, the relationship between debt and creditors can also be called creditor's rights relationship; From the debtor's point of view, it can also be called debt relationship; Sometimes it can also be collectively referred to as the creditor-debtor relationship. Legislation to adjust debt relations is also called debt law, creditor's rights law, debt law or creditor's rights and liabilities law in various countries.
Debt relationship is the relationship between specific people, that is, the subject of rights and obligations is specific. Creditors only have the right to require debtors to perform certain obligations instead of others; Similarly, the debtor is only obligated to the creditor to perform a specific act, but not to others.
Debt occurs according to various legal facts. In many western countries, there are four reasons for debt: contract, tort, negotiorum gestio and unjust enrichment. In socialist countries, debt can be divided into four categories: administrative behavior; Civil legal acts; Illegal acts; Factual acts, such as management without cause, unjust enrichment, etc.
The relationship between debts is binding and legally binding from the time it occurs. When the debtor fails to perform his obligations within the prescribed time limit, the creditor may force the debtor to perform his obligations according to law.
According to the law or contract, the debtor's actions or omissions in the content of the debt (such as delivery of goods, payment of currency, provision of services or non-competition) are called debt performance. When the debtor fulfills his obligations, the purpose of the debt is achieved, and the relationship between the debts is eliminated. Therefore, performing debts is the most normal way to eliminate debts. The performance of debts must follow the principles of individual performance, simultaneous performance, comprehensive performance and actual performance.
Non-performance refers to the debtor's failure to perform the actions or omissions stipulated in the content of the debt, also known as non-performance. In our country, non-performance of debts is a manifestation of non-performance of civil obligations. The debtor shall bear civil liability and be subject to civil sanctions. If the circumstances are serious, he should also bear administrative responsibility or even criminal responsibility. Civil sanctions for non-performance of debts include: recourse for liquidated damages, compensation for losses and compulsory performance. Due to force majeure, that is, natural disasters, war disasters and other unforeseeable, unavoidable and insurmountable objective circumstances, the debtor may be exempted from liability, but shall bear the burden of proof; After the delay in performance, it shall still be responsible for the losses caused by force majeure.
The transfer of debt refers to the transfer of the rights and obligations agreed in the debt without changing the content of the rights and obligations agreed in the debt, but changing the subject of the debt-the creditor or the debtor, that is, the rights and obligations agreed in the debt between different subjects. Including: the transfer of creditor's rights; Debt transfer; All creditor's rights and debts are transferred.
The elimination of debt refers to the elimination of rights and obligations set by debt based on certain legal facts. According to China's legal provisions and economic life practice, the civil legal facts that cause debts mainly include: the performance of debts.
, debt offset, administrative order, agreement between the two parties, objectively unable to perform, etc.