Civil Law To Explain The Science Interests Of Measure Theory

As a methodology of legal explanation, the theory of interest weighing has been criticized severely ever since its birth. Its founder, Jiatengyilang a Japanese scholar, as well as many modern scholars have not raised a trustworthy rule of interest weighing, which inevitably results in the judge's excessive right of discretion . This is a major defect of the theory, and thus it has met with severe criticisms. However, due to restriction of understanding and language and so on, legal loopholes and uncertainty of concepts are inevitable. As an effective and popular method, the birth of the theory of interest weighing has its own reasons. Therefore, it should not be negated merely for some weak points, and it further be further developed.The article is divided into 4 parts, which mainly discusses the rule of interest weighing. The first part discusses the concept, layer and structure of interest. No unanimous idea has been reached on the concept of interest. The author thinks that interest has two aspects: first is the interest in the general sense of the term, the second is the interest in the legal sense of the term, it is a civil right which reflects the needs of special civil main body, and can satisfy human physical and material requirement, and is dependant on certain social relationships and is reflected through specific civil and legal relationship, and is evaluated by law. Interest should be composed of the two units of individual interest and social and public interest. Of which individual interest refers to the interest of any civil main body; Social public interest refers to interest formed by combination of various social interests and under guidance of social ethics and basic values and habit, which reflects social justice and fairness, which is established in legal form and protected. The second part discusses the precondition of the theory of interest weighing, which uses the view of Professor Liang Huixing, that interest weighing is mainly used in uncertain concepts and general clauses; to exclude contrary explanations using interest weighing and to fill legal loopholes. The third part analyses several theories on interest weighing, including the theories of restraint and application ofJiatengyilang, the quantitative calculative method of R.Alexy, the layered structure theory of Liang Shangshang and comprehensive weighing theory of Li Na.The fourth part is the preliminary views on interest weighing, and this paper puts forward 4principles of interest weighing rules: l.the principle of priority of justice interest; 2.conformity to basic values, which includes (1) personal interest of individual interest is higher than material interest;(2) the principle of emphasis on the protection of personal interest;(3) the principle of protection for the disadvantaged;(4) the principle of protection for the safety of transaction; (5) the principle of protecting free competition. 3. Fair and justice principal. 4. Procedure restraint principle, including: (1) Limited applicable principle; (2) legal weighing principle; (3) strict logical principle; (4) Form and reason principle; (5) conformity to legal objectives;(6) the principle of emphasis on social effect. Through the above, the article tries to make more clear restriction on the right of decision of judges in resolving problems by using the theory of interest weighing, so as to let judges to make up for the loopholes in the theory of interest weighing without damaging legal right of the client due to excessive power of decision.