Civil Law Principle Of Judicial Function

The basic principles of civil law embodies the value of the pursuit of the Civil Code and Civil Code contains the highest value. For the understanding of the basic principles of civil law is a long historical process, especially in China's legal system got a late start. Law scholars for the fundamental principles of civil law connotation and understanding of the judicial function has always been hotly debated. The initial founding of New China, China's Civil Code of the theoretical circles have carried out the basic principles of civil law suites here studies. And in accordance with the prevailing political and economic situation raised a number of fundamental points. But is all because of the prevailing historical conditions, limitations and the impact of the economic situation of forced abortions. After the Third Plenum of the Eleventh CPC, China began reform and opening up a big wave. China's economy has undergone tremendous changes. From a single form of the socialist public economy began to diversify the economic form of government. Socialist market economy began to improve and develop. In the past decade of economic development, China's comprehensive national strength has increased by leaps and bounds. This also laid the superstructure of the economic base. In this case. Chinese academic circles hundred flowers blossom and a hundred schools contend the trend has gradually formed. China and France theorists argue against the basic principles of civil law is extremely intense. Understanding of the basic principles of civil law, summarized also appeared different views and opinions. 1986, "Civil Law" was announced, this argument was becoming increasingly unified, but only through the legislative level to unity. This is also the basic principles of China's civil law, the development of features. "Civil Law," Tong said after the enactment of view, the basic principles of civil law, including the principle of equality, autonomy principle, the principle of good faith to prohibit the abuse of rights principle, the principle of public order and good morals. At that time the basic principles of civil law suites here are only reflected in the legal provisions of the. It only reflects the spirit of China's civil law. Judicial activities, the basic civil law has not been actually used. "Civil Law" has just promulgated the form of China's new economy is at its preliminary stage of development The basic principles of civil law with some judicial functions, a guide function. The basic principles of civil law and civil law is inextricably linked between the value of. The basic principles of civil law should be the value of the pursuit of civil law under the guidance of play to their judicial function. People of China and France are expected to achieve the purpose, as well as China and France on how to meet people such expectations, which is a civil law of value. Therefore, the value of China and France to resolve the question of the purpose of civil law and directional questions. Directly to the value should be said that China and France dominate the content of the basic principles of civil law. The basic principle of civil law civil law a concrete manifestation of the value and protection. The basic principles of civil law nature and effectiveness of its consistent nature of the decision, so it is most concentrated expression of value realization and protection of the civil law, civil law only in the judicial practice in terms of specific application in order to play a role in its value. Similarly, the basic principles of civil law in the judicial practice with the value of the guidance function. Third, because the basic principles of civil law as embodied in the value of nature. So, when the judge hearing the case in the process of the law the concept of the rule of law appear on the understanding between the differences and deviations in the final reunification of ideas, have to take into account the principles of civil law and reflect the value of the content. Because the basic principles of civil law itself has a great abstraction. 2, finalized function. China's direct use of the basic principles of a final decision of the Civil Code is still very small. But there is a precedent. 3, coordination functions. Whether statutory or case law itself has great limitations, especially the statute, as legal norms, its content is specific, general, fixed, worked out after a certain stability. Frequent changes in law can not, much less apt to change, or else it will lose its authority and certainty. However, it is to deal with the realities of social life is a specific, diverse, and volatile. Thus, there can not be perfect, pre-inclusive of all social life of the facts of the code. The basic principles of civil law in China and France appear to be happening when, for the contradiction between the existing legal rules to coordinate the expansion is the opportune time to explain to compensate for deficiencies in the existing legal rules to ensure that the field of private law to resolve social conflicts and promote social harmony and stability, economic development and provide strong protection. 4, enlightenment function. Civil law is within the scope of private law, civil law as the adjustment of the personal relationship between equal entities and property relations laws, not of a punitive nature, only has to reconcile nature. It features best reflect the essence of a people's right to pursue a better life, the ultimate expression of this pursuit of a better value in the field of law. These features are reflected in the basic principles of civil law among the decided cases, but also the basic principles of civil law in the judicial practice of civil law as embodied in the value of the pursuit. Dialectical point of view to observe the fundamental principles of civil law judicial function, we find that the basic principles of civil law in their judicial function effectively at the same time, also exposed its own shortcomings. Contains the basic principles of civil law no matter how noble values. If you do not apply in the real world is useless. However, the basic principles of civil law can not by itself spontaneously to play the role of its value. This is like a sword, and only a good swordsman to use in order to play its best role. The basic principles of civil law judges on the use of the swordsman. Unfortunately, the current judge on the whole has not yet reached the realm of the ideal of a people. The quality of non-recognition in the business, or moral qualities, they have a variety of deficiencies. The most obvious is that the judges too much discretion, there may be a judge trying to evade the specific legal rules and direct use of the principle of such a decision is not easy to make a problem, but also saves time and effort, the judge does not require too high a level can be make a decision; the use of the basic principles of civil law to interpret the rule of law, which has been a judge suspected of legislation. Ultimately resulting in a number of justice issues, such as the basic principles of civil law function of uncertainty and certainty of court decisions conflict between; the conflict between the judges and the law; equity value and the contradiction between the value of justice and so on. For the resolution of these contradictions, we must adopt a multi-level, multi-faceted measures to limit the discretion of the judge to allow the judge within the reasonable and lawful to play its role, while allowing the fundamental principles of civil law judicial functions are effectively . Specific measures are: one, the Legislative clear the basic principles of science in order to reduce the application rate of China and France. Well, in order to minimize the judges to exercise discretion, the reduction of the judges of legislation and the possibility of corruption in the legislative session, we should fully use their wisdom and work out the legal infinitely close to perfect. 2 and improve the quality of judges. 3, strengthening judicial oversight mechanisms. China has taken in judicial supervision and multi-channel, multi-level monitoring system, the state organs, social organizations, people's organizations, community have been incorporated into our system of judicial supervision, In addition, the masses of individual acts of judicial supervision . 4, to give the judge sufficient to satisfy the interests of. In short, the basic principles of civil law as long as we have a clear understanding. But also with a scientific attitude to take advantage of it. So the basic principles of civil law judicial function would be to get better play.