Constructing the Habits of the Judicial Application Mechanism Research
|Keywords||social norms feasibility restrictive principles diversified dispute solution mechanism apply restrict judging method compatible rules|
As the social norms of a habit, is a community within the social main body according to the local social custom and habits and enjoy oneself to be or not to be, or to request others to be or not to be a certain behavior of rights and obligations in general, with effectiveness of spontaneous, powerful legal remedy, social and legal character, and in judicial adjudication reflects the rights and obligations ( interest ), faith and morality, national and regional, repeated applicability and long-term stability of the feature combination. On the customary applied in judicial feasibility, both theoretical support, also has the practice on demand. Of course, the using habit also has certain limitation, need according to the habits of some characteristics of corresponding restrictive principles, including: make up and the legal principle of priority; the original and the principle of discovery; coexistence and the meaning autonomous principle; uncertainty and" good" defining principles. On the judicial application habits of the mechanism, through the establishment of diversified dispute solution mechanism, improve the people’s jury system, carry out the expert advisory system, the habit of hearing system and other measures, construction of local social dispute resolution mechanism, promote habits and judicial interaction; through the clear identification standards, habit habit selection criteria, value judgment establish the habit form legal standard method, and established the practice operation to restrict a mechanism, normative habits into judicial path through the legal reasoning in legal argumentation, provided for the occasion to fill loopholes in the law, as a rule of thumb for fact way, presumed optimal judging methods and mechanism in the process of science, using habit; and in the national legislation, judicial interpretation, the typical case guidance level compatible with the legislation and the judicial interpretation mechanism, in the basis of fully absorb the habit.