Sense In The Theory Of The Judicial Practice

In the judicial practice in ancient China, there is fertile soil and the sense of good root environment, once in ancient times has a prominent position in the judicial practice. Thousands of years of Chinese legal culture far-reaching impact on later generations, and as a cultural factor in the sense of impact on people is huge, it through the general value orientation to guide people silently influences the judicial practice, the referee to make the process and results. In judicial practice, of course, reasonable form is varied, he can keep pace with the law, will also appear incompatible between legal situation. They both united and contradictory to each other. This article through to the contemporary study of reasonable assurance in the judicial practice, analyzes the role and influence, find the problems and deficiency, and puts forward countermeasures and Suggestions. Contradiction is the unity of opposites, coin has two sides, the reason is no exception.The author through reading and analyzing a large number of references, and in the first part puts forward the concept of reasonable understanding and introduces itself has the characteristics of the reason, mainly introduces the reason and law, the relation and distinction between sense and moral. The author thinks that the judicial practice of justice sense is a kind of balance, but this balance justice has broad sense and narrow sense. The reason of this study is to exist in the judicial practice, the bias based on the family ethics, common justice justice sense of balance. It belongs to the category of morality, but also different from general ethics, although the range is smaller than the moral, but as to the role of the judicial practice and influence moral influence and function of the law. Reasonable contact law mainly displays in three aspects:mutual penetration, mutual restrict, mutual guarantee.The second part the author combined with actual case analysis the relationship of cleaning and the judicial practice. Reasonable and legal differences between each other, but both are closely linked, in the judicial practice in the method, method of affection of aggregates, the separation of the two are almost impossible to achieve full and exist in isolation. Two relations embodies in two aspects:one is the reliance on judicial practice, main show is:Ephraim as this, reason, give attention to two or more things blending method. The second is the conflict between private and judicial practice. Sense in its judicial practice also can appear separation could even alienation, even legal and reasonable along in the ultimate sense, because the law has the relative independence and objectivity, and has relative flexibility and the sense of subjectivity, reason and law of differentiation and conflict between became inevitable.The third part the author analyzed the reason to exist in the judicial practice, mainly from two aspects of history and reality reasons are analyzed. Historical reason is mainly attributed to the characteristic of Chinese ancient history and culture as well as the judicial administrative system and political system, so that a long period of feudal society in China, the unreasonable places in the judicial practice used to complete the chief executive. Reason is mainly reflected in three aspects:the legislators of bounded rationality, the subjective initiative of judges and the public acceptance and recognition of the verdict.The fourth part the author introduces the function and influence on the judicial practice of sense of. The judicial practice, as one of the important factors in reason, very important reason is the unreasonable not only has a real effect to the solution of the dispute, and in the process of legal change and solve the lag of legal has certain guiding significance. Specifically, in the sense of justice in the positive effect is mainly manifested in the following aspects:to make up the lack of legislation; To get over the people, improve the judicial credibility; Help to resolve social disputes. Negative effect mainly reflects in:weaken the judicial authority, the stability of breaking the law, and lead to the abuse of discretion of the judge.The fifth part the author for clean up the conflict and the judicial practice their processing methods and Suggestions are put forward. How to eliminate the conflict between reason and the judicial practice? To this, this article from the theory and practice two aspects, discussed. Theory first of all insist on Ephraim, and secondly sense; The second application in accordance with the law to apply reasonable carefully. Practices mainly do four aspects:the method of combining, perfect the legislation; Legal and rational law enforcement, improve the efficiency of law enforcement; In the judicial referee emotion balance method and the use of diversified dispute settlement mechanism, ease mood conflict law.I always think, the reason for the role of the judicial practice has both advantages and disadvantages, if we can correctly grasp the reasonable judicial practice subject into laws of space and maximize the positive role of good sense, make the two organic combine, the good, avoid the short, complement each other, interaction, can well solve the disputes, stable social order, promote social harmony, for the construction of modern rule of law society and the realization of the "Chinese dream" and so on great ideal wings.