Research On Equal Principle

Equality, as the eternal law of justice, is the spirit and life of law, it is also anabstract and difficult principle to grasp. How to confirm the concrete equality of thelaw according to the equal principle and to reflect it in the law enforcement andjudicial, has been a quite complicated legal problem all the time, it is significant toimplement the research both in theory and in practice. This paper insists that clarifyingthe concept of equality should be regarded as the prerequisite to study this problem andmainly discusses from several aspects: the nature of the law, the effectiveness and thefunction of equality principle in the law and the scope of the principle of equality.The academy regarded equality as a self-evident a concept and used it withoutreflection is the root cause of equality ambiguity, and thus to explore the concept ofequality, to clarify its intent is the premise to study equality. this thesis gives us a vividexplanation through the investigation of historical rheology of the equal idea and thelever principle, we can recognize that the "equivalence" or "average" is just a specialcase of the concept of equality, it will be bound to the chaos and dilemma if weunderstand it e all the issues of equality. Leverage theory also also reveals thatequality in the form of its meanings has different content, but in the law they means thesame and non-discriminatory treatment, equality has thus become an equal measureand yardstick of whether a particular matter to be equal or not. Equality in its content isthe embodiment of the fairness, which reflects a rational proportionate relationshipwith a certain interests or burden configuration among people, it is a key to understandthe concept of equality to integrated the equivalent, balance, proportion, fair. Formalequality and substantive equality as a dual dimension of equality for scholars toexaggerate their differences and ignore the phenomenon of his associates, and wesupports that they are not only just being in opposition and rejection, but alsoself-denied themselves.As for the nature of the law, the arguments whether we should consider equality as the right or just a principle is still hang in the sky. the equality as a measure standardand tool including criterion and tool of value it is not all-encompassing although thereis extensive embracing applicable scope and is different in different areas. Thereforeclarify the equal applicable scope is the premise of judging whether the decision orbehavior violates the prerequisite of the equal principle or not. We can only discusstheir common range because the applicable scope of the equal principle oftenfluctuates. For this respect, this paper discusses the scope and border of equalityprinciple in human rights, state power, state system, and the field of private law.Thirdly, effectiveness and functionality of equality principle embodied mainlyhow to do rational distinction on legal, Namely confirm " The same " With " different "on a rational Basis, and how a " rational difference " the law can give is the benchmarkof the equal principle. Identification of Rationality can only be determined accordingto certain benchmark because of filling with subjectivity. In the current the benchmarkof systematic research is mainly reflected in the field of judicial review. The UnitedStates establish the triple Scrutiny test, which form the Systematically judgement basisto confirm whether or not the law or policy violate equal principle, different Scrutinytest corresponds to different right types, which lead to the acceptability of assertingwhether violating equal principle. but Affirmative Action is a focal area judging bywhether it violates equality principle according to Scrutiny test. Favour differentialtreatment is the policies and measures advocated by U.S.A and practiced in variouscountries. During which, checking its abiding by equal principle is the focus fieldspeople pay much attention to is conducive to further clarify the reason that equality isonly as a matter of principle rather than a right. In addition, To analyze how Americansequal clause promote the appearance fairness legal of system can promote people’sunderstanding of complexity in the actually running of the equal principle.It is also cancause the deep thinking of educational circles of field of our country:the direction ofrepelling equal principle out of legislative field.Finally, because the equal principle has not entered our country’s legislates field,the equal principle suffers from legislative refuse, which leads to the fact that inequality phenomenon is seriously common in reality and in the legal system. it is aeffective way to change inequality phenomenon to set up the consciousness of theequal ideal and transform the legislative idea. for this reason, Analyzing from theconstitutional side with the example of the college entrance examination of ethnicminority and discussing how to restrain the judicial right through equal principle.