Uncertainty Of Law In Judicial Process And The Strategies Of Reply

The certainty of law is the basis of the rule of law. There is always controversy about the certainty of law. Some people think that law is absolutely certain, therefore when face a specific case, the judge's duty is just applying rules mechanically, while the others believe that the law is uncertain, for example, legal principles, unlike rules, cannot serve as a test offer grounds to judges for their adjudication, It need judges' value judgment. This article analyzes different views on the certainty of law, we believe that law is relative uncertain, and it shows through judicial process.Besides the preface and conclusion, the article is divided into three parts as follows:The first chapter discusses the certainty of law and the uncertainty of law. The certainty of law is the aim and requirement of the rule of law. After a brief introduction of theoretical foundation of the certainty of law, the chapter points out query of the certainty of law, and analyzes effects of the uncertainty of law to legal practice.The second chapter studies the uncertainty of law in judicial process. First part is the manifestations of this uncertainty in judicial procedure, containing the uncertainty of legal concept, the uncertainty of verification of legal facts, the uncertainty of legal rules, the uncertainty of the judicial results; Second part analyzes the reasons that cause the uncertainty of law in judicial process. Because the words are fuzzy, their meanings are always change. It also because of limitation in legislation, and the complexity of the society, and subjective factors of the judges', they all cause the uncertainty of law.The third chapter provides the measures for settling the uncertainty of law in judicial process. At present, there are various viewpoints among researchers in our country. This article explores three ways mainly: judicial discretion, judicial interpretation, introduction of case law in our country. Based on the existing achievement, we think that those strategies could play a role to the settlement of the uncertainty of law, but they also have some disadvantages. So we may take other measures. For example, we need to perfect the legislation, strengthen the procedure system of application of law, improve quality of judges, use legal methods, such as legal interpretation, supplements of loopholes in the law, value measurement and so on.