| Under the background that the legal system frameworks of different departments have been formed,the focus of the rule of law construction has shifted from the formulation of rules to the implementation of laws.The key to the implementation of laws is to use legal technology to continuously adjust to solve the detailed problems in the application of rules,so as to promote the law and the times advance and respond to social needs.In recent years,the research on legal methods has gradually become a new growth point of general concern in the theoretical and practical circles,which shows the importance of law enforcement,and the same is true for economic law.The modernity of economic law makes it have different characteristics from traditional law.The emergence and development of economic law is not only the cognitive expansion of legal concepts and legal knowledge,but also the systematic remodeling of legal methods and thinking methods.In the context of the increasingly important law enforcement,the judiciary is an indispensable link in the practice of economic law,and the thinking of economic law is the core essence of guiding the practice.The judicial application of economic law thinking has the dual characteristics of practicality and theory:On the one hand,analyzing and interpreting the thinking of economic law is the need to improve the method and technology at the judicial level.The substantial and open features of economic law make it face more diverse considerations and more complex choices and judgments in judicial application,and judges also have greater discretionary space.Uncertainty increases.Perfecting the legal method focusing on economic law thinking is precisely to reach a consensus on the method,so as to eliminate the uncertainty that may arise in the application of economic law to a certain extent,so that the judicial practice of economic law can better shoulder the burden of realizing fairness.The mission of the era of justice,and construct the application method of economic law in line with the characteristics of China’s judicial practice.On the other hand,the practical application of economic law thinking is an important way to deepen theoretical research.The "law" of the "rule of law" not only covers practice,but also theory.After all,theory and practice are two inseparable aspects of law.It is undeniable that legal methodology,including legal thinking,is mainly oriented to judicial practice,and the discussion of economic law thinking also stems from the urgent need to solve practical problems,but in turn,mature legal practice and legal methods can also promote theoretical research in economic law.The deepening and enrichment of economic law thinking itself is also a process of rethinking and recognizing the essence of economic law.The openness of economic law thinking also determines that in its application,it is more necessary to obtain the guidance and test of economic law theory,and to use the theory’s forward-looking and speculative nature to better enrich the connotation of judicial application and clarify the application boundary.Therefore,it can be said that the discussion of the judicial application of economic law thinking should start with practice,and finally speculate,and continue to explore and develop in the interaction with theory.In view of the important significance of the practical application of economic law thinking,this paper selects the research perspective with judicial as the starting point,based on the characteristics of economic law thinking,and discusses the connotation characteristics,applicable scenarios,and reflection application limits of economic law thinking from the practical level,so as to be as comprehensive as possible.To explain the practical mode of judicial application of economic law thinking.Focusing on the above-mentioned problems,this thesis discusses the idea of "what is the thinking of economic law-how to apply it to practice-reflection on the application of practice".It is divided into six chapters in addition to the introduction and conclusion.The first chapter focuses on the connotation and essential characteristics of economic law thinking,focusing on solving the basic problem of what is economic law thinking,which is also the starting point of researching the practical application of economic law thinking.Deconstructing the connotation and essence of economic law thinking can be discussed from two perspectives: the general law of the development and evolution of legal thinking and the particularity of economic law as a modern law.It can be found from that the generation and development of economic law thinking is consistent with the evolution of legal formalism to substantiation.Value is the logical core,and legal interpretation,logical reasoning,and interest measurement are the analytical methods of media tools.Economic law thinking is a modern transformation of traditional legal thinking,but it is not a complete negation of tradition.Although there are differences between economic law and civil and commercial law in terms of legal standard and value orientation,under the common goal of regulating the development of the market economy,the two have practical needs for complementary and coexistence in the fields of fair value,adjustment objects,and legal functions."Seeking common ground while reserving differences" not only transcends the thinking limitation of single-department law,but also conforms to the research characteristics of economic law thinking.The second chapter starts from the practice of civil and commercial trials,and studies the practical basis,logical development and manifestation of the judicial application of economic law thinking.Affected by multiple factors such as the reform of the market economy system,the theoretical research level of economic law,the degree of perfection of economic legal norms,and the reform of civil and commercial methods,the thinking of economic law has experienced a development from taking shape,from vague development to spontaneous application in the practice of civil and commercial trials.Process.The increase in the demand for judicial application provides a realistic motivation for the improvement of economic law thinking and judicial application technology.It has initially formed an economic system that takes the concept of economic law as the logical starting point,logical reasoning and legal interpretation as the main methods,and conducts effect correction through interest measurement and value judgment.The logical structure of legal thinking and judicial application takes into account the dual characteristics of formal rationality and substantive rationality of economic law.At the same time,in line with the performance requirements of judicial trials,in order to implement national economic policies,refine laws to fill loopholes,and achieve substantive justice in individual cases in the trial of economic disputes,judicial policies,judicial interpretations and case systems have become important areas and manifestations of the judicial application of economic law thinking.form,which will be described later.The third chapter discusses the application of economic law thinking in judicial policy.Faced with the conflict of interests and social risks arising from the transformation of economic and social development,economic trials are required to assume more political and social functions in the process of resolving conflicts.The judicial policy of civil and commercial trials is a bridge linking national economic policies and judicial trials,and is a concrete expression in the judicial field of the thinking of the state regulating and regulating economic development.The national economic policy determines the value orientation,function mode and content expression of judicial policy.Based on the analysis of the practice of civil and commercial trials,it can be seen that the civil and commercial judicial policies reflecting the thinking of economic law are directly or indirectly transformed into judicial interpretations,guiding case judgments and other direct or indirect ways,and play a role in guiding judicial trial performance,serving the overall situation,and making up for deficiencies in administrative rules and legislation.It actually affects the judgment concept and value orientation of civil and commercial trials.However,the flexibility and responsiveness of judicial policies can also easily undermine the unity of the rule of law.Therefore,in practice,internal and external risks that may be caused by the application of judicial policies in civil and commercial matters should be rationally analyzed,and corresponding preventive measures should be improved to prevent the boundaries of judicial power from being blurred or judicial Functional alienation.The fourth chapter analyzes the application of economic law thinking in judicial interpretation.The essence of the application of law in judicial judgment is the process of legal interpretation.In civil and commercial trials,the use of economic law thinking in legal interpretation can timely respond to economic development trends and practical needs,and avoid unreasonable social effects caused by mechanical compliance with rules.Judicial interpretation is a legal phenomenon and judicial system arrangement with "Chinese characteristics" in the field of practice.In the judicial application of economic law thinking,it plays the role of making up for the limitations of statutory law,restricting and regulating judicial power,and realizing judicial political functions.Applicable "Legislative Model".In the judicial interpretation of civil and commercial affairs,the thinking of economic law is mainly presented in the form of mandatory norms,which are concentrated in the fields of subject qualifications,restrictions on behavior,and forms of responsibility with the color of economic law,aiming at regulating market order and maintaining a fair competition environment,to correct the unbalanced consequences that competition may bring.Affected by the abstraction of judicial interpretation content,the lack of specialization in knowledge reserves,and the lag in application effect,the judicial interpretation system itself is not only faced with the need for standardization,but also does not exclude the choice of a more appropriate alternative system to realize economic law thinking.Judicial application.The fifth chapter explains the application of economic law thinking in the case system.As the most common and basic way to practice law,case is also a public product based on the nature of judicial power judgment.It can not only reflect the application of economic law thinking in dealing with specific disputes from a micro perspective,but also more in line with the operation law of judicial power.It can be described as a "judicial model" for the judicial application of economic law thinking.The application of economic law thinking in cases can help to enhance the empirical value of judicial activities,guide the formation of value consensus,and promote the generalization of substantive justice.Practice has shown that economic law thinking has a wide range of applications in the field of case judgment,such as subject relationship evaluation,market competition,market transactions,and social distribution.Based on the special advantages of applying economic law thinking to the case system,on the one hand,it is necessary to improve the operation mechanism of the case system to make it play its due role better.It plays a greater role in enhancing the specialization of the application of economic law thinking,responding to the requirements of national governance,and improving the judicial application ability of economic law thinking.The sixth chapter summarizes and reflects on the limits of judicial application of economic law thinking,and on this basis,considers the basic direction and possible path of judicial application of economic law thinking in the future.There is a certain contradiction between the openness and substantive tendencies unique to the thinking of economic law and the inherent neutrality,passivity and conservatism of judicial power.When translated into judicial practice,it is manifested in the concept difference between judicial activism and judicial restraint,and the stability of adjudication.Conflict with the purpose of responsiveness,and the difference between formal and substantive rational judgment logic.A rational review of the application limits and inherent contradictions of economic law thinking in civil and commercial trials is to solve its judicial application dilemma and better promote the sound development of economic law theory and practice.In order to overcome the obstacles of judicial application of economic law thinking,we should take into account the respective characteristics of economic law and judicial power,and at a macro level,we should guide and improve the practice according to the principles of returning to the legal nature of economic law,abiding by the attributes of judicial modesty,and strengthening the construction of methodology.At the same time,it should also focus on the core elements such as the adjudication method,adjudication subject,and judicial system involved in judicial adjudication,and put forward feasibility considerations for improving the judicial application effect of economic law thinking from the aspects of judicial technical regulation,judge ability improvement,and court function optimization and determination. |
