Legal principles refer to the guiding principles andcriterion。The law recognizes the regular requirements of certain social life and state activities.Throughout the concretelegal norminCompared with legal norms, legal principles directly reflect the content and essence of law, as well as the trend, requirements and regularity of social life.Legal principles can be divided into basic principles of law and general principles of law according to their different positions and roles in the system structure of law.The basic principles of law occupy the core position in the system structure of law and play the most fundamental guiding role;The general principles of law are the derivation of the basic principles of law and the relative embodiment of the basic principles in all parts of the system of law.The general principles of law can also be further divided into the principles of legislation and application of law, or into the principles of various departments of law.It can be divided into general social principles and special legal principles according to the closeness of the relationship between legal principles and social relations.The former expresses the social and political content of the law, while the latter expresses the special legal content of the law.Different historical types of laws have different legal principles, but some legal principles, such as special legal principles, have historical inheritance.[1]
Legal principle is the basic truth and principle of law, or the comprehensive principle or starting point that provides the basis or origin for other legal elements.
Applying Legal Principles to Cope with Anti dumping
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From the perspective of law making
In legal practice,lawPrinciples play a very important role.
fromLegislationFrom the perspective of, legal principles play an important role in the following three aspects.
1. Legal principles directly determine the basic nature, content and value orientation of the legal system.The legal principle is the most concentrated embodiment of the legal spirit, which constitutes the theoretical basis of the entire legal system.
2. Legal principles are an important guarantee for the internal harmony and unity of the legal system.
3. Legal principles play a guiding role in legal reform.
From the perspective of law implementation
fromLaw enforcementOn the other hand, legal principles also play an important role.This role is mainly manifested in the following three aspects.
2. Supplement legal loopholes and strengthen the regulatory capacity of laws.
3. The legal principle is to determine the exerciseDiscretionary PowerBasis for reasonable scope.It can prevent the adverse consequences caused by the application of unreasonable rules.
classification
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1. Legal principles can be divided into axiomatic principles andPolicy principles。
The axiomatic principle, that is, the principle constituted by the legal principle (legal principle), is a legal principle derived from the legal reason, and is a legal principle in strict sense, such as the principle of legal equality, the principle of good faith, the principle of equal value and compensation, the principle of presumption of innocence, the principle of legality, etc. They have greater universality in the international scope.
Policy based principles are some principles formulated by a country or nation based on certain policy considerations, such as the principle of "governing the country according to law and building a socialist country under the rule of law" stipulated in our Constitution, the principle of "the country implements a socialist market economy", and the principle of "implementing family planning" in the marriage law, etc.The policy principle has pertinence, nationality and timeliness.
2. Legal principles can be divided into basic principles and specific principles according to the breadth of coverage and scope of application of legal principles to human behavior and its conditions.
Basic legal principles are the principles that are applicable to the whole legal system or a certain legal department and reflect the basic value of law, such as the principles stipulated in the Constitution.
Specific legal principles are the principles that apply to specific situations in a certain legal department under the guidance of basic principles, such as the offer principle, acceptance principle, error principle, etc. in the (British and American) contract law.
3. According to the different contents and issues involved in legal principles, legal principles can be divided into substantive principles and procedural principles.
Substantive principles refer directly to principles involving substantive law issues (substantive rights and obligations, etc.). For example, most of the principles stipulated in the Constitution, civil law, criminal law, and administrative law belong to this category.
Procedural principles directly refer to the principles related to procedural law (procedural law), such as the principle of "one thing is no longer justified", the principle of defense, the principle of excluding illegal evidence, the principle of presumption of innocence, etc.
Applicable conditions
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Applicability
On the surface, what is stipulated by legal principles seems to be a big and empty content, and therefore there is no real practical effect.But the fact is not what you think.As we know, when the Allies sent German and Japanese fascist war criminals to the International Military Tribunal in Nuremberg and Tokyo for trial after the end of the Second World War, it happened that some defendants defended themselves on the ground that it was the duty of soldiers to implement the laws of the country or the orders of the head of state, thus not constituting a crime.Although this defense was reasonable in the positive law of Germany and Japan at that time, it did not conform to the axiom of human existence and the ancient legal principle of human equality. Therefore, the court still sentenced the war criminals to guilt.It can be said that the trial of fascist war criminals after World War II typically reflects the victory of human axiomatic legal principles over the legal rules of some specific countries, and also shows the practical applicability of legal principles in law.
case
We also know that in the famous case of Riggs v. Palmer, which took place in the United States a hundred years ago, a variety of completely different opinions were formed on the issue of whether the testatee (testamentary successor) Palmer still had the right of inheritance after killing the testator (his grandfather).One of the opinions is that, according to the general provisions of the Wills Law of New York State, even if the successor killed the testator, he should not be deprived of his right of inheritance except for bearing the relevant criminal responsibility.However, there are more important legal principles behind the legal rules: "The court said that behind the provisions of 'must abide by the contract', the principle of 'honesty and credibility' can be found, and behind the provisions of 'no harm to others', the principle of' protection of individual rights' can be found. Similarly, the provisions of inheritance also rely on the principle of 'no fault'.Just imagine, how can the Wills Law tolerate the heirs to murder the heirs and gain the inheritance!Therefore, the law includes principles, and a violation of the principles is certainly a violation of the law. "The final verdict of this case was Palma lost the lawsuit, and thus an important legal principle was drawn: "No one can benefit from his fault".
Conditions for operability
The preceding case occurred in the countries of the common law system.In civil law countries, the codified law determines that the legal principles are not specifically determined by the judicial decisions of the courts, but are clearly stipulated in the code.Therefore, the principle of law seems more obvious.This also provides more operational conditions for the effectiveness of legal principles.
Embodiment of the effectiveness of legal principles
overview
It can be seen that whether the legal principles behind the legal provisions are determined or discovered by judicial decisions in the countries of the common law system or the countries of the continental law system stipulate legal principles through rigorous codes, legal principles and other contents of the law have legal effect.Not only that, it also has the legal effect that the legal rules cannot.So, where is this effect reflected?
We believe that the effectiveness of legal principles is generally reflected in six aspects:
firstly
The validity of legal principles is generally reflected in the specific provisions of all legal provisions, that is, as long as legal provisions have legal validity, it means that legal principles are in effect;
second
When specific legal rules lose legal effect, legal principles still have effect, so legal principles can fill the vacuum after legal rules become invalid;
third
When there are obvious loopholes in the content of legal rules, legal principles directly produce legal effect by means of filling up loopholes;
Fourth
Is whenlegal normIn case of conflict, coordinate the conflict between laws according to the general provisions of legal principles;
Fifth
When the content of legal rules is ambiguous, legal principles are used to clarify it;
Sixth
When the legal rulessocial relationsThere is no specific regulation on adjustment countermeasures.
Relevant rules
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First, the universal effect of legal principles
This means that legal principles must be jointly and severally made universal because of the universal effect of law.Since the principle of law is concise, its spirit permeates all the specific rules of law.When the specific rules of law become effective, it naturally means that the legal principles have joint and several effects.For a specific law, legal principles run through all occasions where the rules of the law are applicable;For the law of a country, its legal principles run through all occasions where the legal rules of that country play a role;Similarly, forInternational lawAs far as law is concerned, its legal principles run through all occasions where all norms of international law apply.This universal effect of legal principles makes them not only rigid provisions in law, but also the content of activities.It is this daily and universal effect of legal principles that enables the legal norms to maintain the integrity of the couplet, even though their contents are scattered and jumbled.On the surface, once the law acts on the whole, the effect of legal principles is often hidden but not obvious, but this is not the disappearance of its effect, but its effect has changed in form, that is, its effect is hidden behind the effectiveness of legal norms.
Second, the direct effect of legal principles
As mentioned earlier, when legal rules lose their effectiveness due to the passage of time, legal principles are the basis for ensuring the continuity of legal order.In legal practice, legal rules "are applied in a way that is either effective or invalid, so they do not have to weigh or balance each other." Although this conclusion is drawn when comparing the different ways of action of legal principles and legal rules, it also shows on the other hand that when specific legal rules lose legal effect,Other existing legal rules cannot be a substitute.Then, how to solve the problems caused by the invalidation of specific legal rules to people's behavior, especially judicial activities?How to continue to maintain the unity, harmony and consistency of the national legal order in this situation?This task can only be undertaken by legal principles.At this time, the legal principle has exerted an explicit effect on people's legal activities. It is no longer the "hearer behind the curtain" within the law, but directly "governing the government".
Obviously, the direct effect of legal principles is not the counterpart of the aforementioned universal effect, because strictly speaking, universal effect also belongs to direct effect.Only in the case of the existence of legal rules, citizens, in the application of laws or in the judicial activities of judges, adopt the method of solving problems directly according to legal rules, rather than directly quoting legal principles. In this sense, when legal principles implicitly exert their universal effect, it is obviously not as direct as quoting legal principles.In a sense, it is "indirect".At the same time, in this case, legal principles exist explicitly in people's legal activities.In this way, when legal rules fail, legal principles are legal rules in practical sense.
Third, the effect of legal principles to remedy omissions
In any country, the legal provisions of human beings cannot be as ideal as the idiom says: "The legal net is gray, and it is not easy to leak.".On the contrary, any great lawmaker may face the problem of legal omission, unless the law is not made by man but by God.In this respectNapoleonConsidered "immortal"《Napoleonic Code》This is the proof.Although the Code willlaissez-faire capitalismAll the economic civil relations of the era have been included in its adjustment scope, so that the judge just needs to be like a "vending machine" in front of it, to accept the case at one hand and export the law at the same time, but the fact proves that its omission still exists, so France has made many additions to the code since then (rather than amendments required by the times).Why is this so?This is because human law, as the product of human mind, is closely related to the defects of human mind itself.We know that law is the symbolic crystallization of human cognitive objects, but human cognition of objects is subject to a variety of factors, such as the infinite diversity and constantly changing nature of things, which cannot make the limited experience world of human fully understand.Another example is the subjective prejudice of human beingsGadamerIt is believed to understand and recognize thingspremise, which makes it obtain some legitimacy, but prejudice also constitutes an obstacle for us to better understand things.From this perspective, prejudice is not only the premise of human cognition, but also the obstacle of human cognition.
Since human cognition cannot be perfect, then the laws made based on it cannot be perfect.Therefore, the existence of loopholes in the law is difficult to avoid.This is especially true in countries where the code is a written law.Although it is an ideal to try to formulate an all inclusive code to solve the problems in our social relations once and for all, it is often unrealistic once it is implemented to the practical level.Then, what should we do if the law inevitably has loopholes?We know that loophole supplementation is the basic remedy.But what is the remedy? Generally speaking, the first is through legislation, but it is oftenFar water cannot quench near thirstTherefore, it is of no use to judicial activities.The second is through judicial relief, which is actually a relief within the law.Generally, the remedy resources taken by the judiciary are legal principles.That is, legal principles are the basic mechanism for the judiciary to remedy and supplement legal loopholes.This is not only about pursuingStatutory codeThis is true in civil law countries, even whencase lawThis is also true in the Anglo American law system countries.Even in the history of justice, Anglo American legal system countries pay more attention to the use of legal principles to fill legal loopholes.It can be seen that legal principles are the direct materials available to judges in terms of remedy of legal loopholes.That is to say, legal principles have the direct effect of supplementing legal loopholes.
IV. Interpretation effect of legal principles
Just as there are always loopholes in laws, there will always be conflicts between rules in laws.Especially in modern countries that emphasize the rule of law and norms,social subjectEvery aspect of public communication is intertwined with laws, even becauseLegal rightsThe more important the norms are, even people's right choices are strictly protected and adjusted by the law. This situation means that the law has openly penetrated into our private life, even the field of psychological activities (from the perspective of rights).The omnipresence of law, at the same time, it is difficult to ensure that there is no conflict of law.However, the conflict of legal rules causes not only the problems of the rule system itself.Because rules are always related to peopleBehavior modeTherefore, the conflict of rules must mean the conflict of subject behaviors under its regulation, and then endanger the order of society.In this way, when legal rules inevitably conflict, how to coordinate and remedy this conflict is a crucial issue.
If there is a conflict between legal principles, we can take the way of value measurement and interest measurement to solve it according to the "weight" of different legal principles, then what should we do when there is a conflict between legal rules?Obviously, there is no subordinate relationship of "weight" between legal rules (although there is the principle of "superior law is superior to inferior law" between laws of different effectiveness levels; there is "special law is superior to general law" between general law and special lawHowever, this still cannot solve the conflict of legal norms between laws at the same level, between laws belonging to the same general law, or even in the same law). Therefore, we cannot expect to solve the conflict between them within the legal rules, but must rely on legal principles to solve the problem.In civil law countries, legal principles are relatively clear in statutory law, but in common law countries, legal principles are often not clear.The most important legal principle in case law isFollow the precedent principleUnder this circumstance, judges use identification technology to make decisions between precedents and current cases.In more cases, judges adopt the principle of "natural justice" to coordinate the conflict of legal rules by finding and interpreting laws in social morality.Both the express provisions of the continental law system and the search and discovery of law in the social morality of the Anglo American law system according to the "principle of natural justice" indicate the relief and coordination functions and interpretation effects of legal principles on conflicts of legal rules.
Fifth, the definitive effect of legal principles
The law should be an affirmative and clear norm, otherwise, people can neither predict the future on this basis, nor form a realistic social order and psychological stability under its adjustment.However, this does not mean that the legal provisions are always clear.The opposite is often true.In written law countries, the vagueness of law mainly comes from the vagueness that may exist in the words that constitute the law.As far as words are concerned, there are a lot of polysemy or synonymy of one word in various national cultures, which will inevitably be reflected in legislation;In terms of the use and collocation of words, although the legislative language requires the most accurate language and semantic collocation, the law is always in the context.This not only means that in the context of different national languages and cultures, but also in the legislation of the same era in the same country, the content of the legal text will change, and the certainty of the law will be challenged.In case law countries, the vagueness of law often comes from the limited rationality of judges themselves.Faced with many precedents and complex case facts, the judge should not only find out the general rules applicable to the case from the former, but also summarize the special rules for the case from the latter.This is sometimes difficult for judges.More importantly, as in countries with written laws, judges must express their judgments in words.Therefore, it is not difficult to understand the formation of case law ambiguity due to the ambiguity and ambiguity of the text itself.
The legal rules have become vague, which of course needs legal relief.Of course, legislative relief is an ideal way of relief, but it is often unrealistic.Therefore, it is the most commonly used method to remedy the ambiguity of legal rules through legal principles in judicial activities.Generally speaking, although the principle adopts a language or writing with more extensive contents, this situation also determines that its implied meaning is more extensive and definite.Therefore, when the specific rules of law are ambiguous, the determination of legal principles in a more "grand" sense at least provides a reference for people to understand and interpret fuzzy legal rules, thus making legal rules from fuzzy to clear.This is its definite effect.
Sixth, the continuing effect of legal principles
There will always be a "time lag" problem in the law, "... when the established law and some volatile and urgentsocial developmentWhen forces conflict, the law must pay the price for such a stable policy‘Social change is typically faster than legal change. '""The problem of 'time lag' in the law will show up in different levels of the legal system..." It is precisely the existence of the "time lag" that leads the law to make provisions only on immediate issues. As for the more long-term emerging social problems that have not been brought into the vision of legislators, when legislators are still too busy, they can only rely on judges to solve them through justice.In addition to the "time lag", the law will also have various drawbacks, limitations and deficiencies due to people's different perceptions of social issues.Thus, the law in front of us is always flawed, and there is no so-called perfect law.All these need judges to remedy in judicial activities.
We can also call it "continuation" of law through legal principles to remedy the "time lag" and other defects of law.According to Karl Larenz, "the continuation of law" generally includes two aspects: "For a long time, people have also recognized that the court has the authority to fill legal loopholes. Therefore, it is also one of the important aspirations of law science to provide judges with some methods that can be reasonable and understood by others to complete this task.The continuation of the judge's law is sometimes not only to fill the loopholes of the law, but also to adopt and even develop some new legal ideas, which are at most vaguely mentioned in the law. Therefore, the judicial judgment has gone beyond the original plan of the law and made more or less amendments to it.This "continuation of the law beyond the law" must, of course, conform to the basic principles of the overall legal order. In fact, it is often to make these principles more universally applicable (compared with those prescribed by the law) that there is an effort to continue the law. "Here, Larenz basically answered the question that judges adopt legal principles to continue to build laws.In a word, when the law has a delayed response to new things due to various reasons or there is a defect in the content of its adjustment, then the judge needs to use legal principles to remedy its shortcomings, so that the law can better adjust social relations and try to minimize its limitations.
