The Study Of The Scene,Standard And Path Of Interest Balancing In Judicial Adjudication

It has been more than twenty years since the theory of interest measurement was introduced into China.Through scholars' research,great progress has been made in both theory and application of judicial practice.Nonetheless,the study of interest balancing in judicial adjudication,the problems,such as the determination of the applicable scene,clear standards and the construction of the specific operation path,are not only lacking of consensus but also apart from practice.Therefore,this paper will stand on the practice of China's judicial adjudication,teasing the domestic and foreign related research,combining with the domestic criminal,civil and administrative cases,concentrating on the applicable scene,the standards and the specific operation path in order to promote the practice of China's judicial adjudication.This paper is divided into five parts.The first part is a review of the current research status of domestic and foreign interest measurement theories,and sets the theoretical foundation for the study of the benefit measurement in the judicial adjudication.The second part summarized in the domestic judicial practice for the realistic necessity,combine with the specific cases of China's judicial referee,to argument the space of interest balancing in China's judicial judgment.In the third part,according to the evaluation of the applicable scene,I definite the legal loophole supplement as the applicable scene of interest balancing in judicial judgment,and clear the boundary of the interests which judicial application involves.The fourth part sets the legal rules and the legal principle as the standards of the interest balancing in the judicial adjudication,and clarifies the specific applicable rules for those standards.Finally,the researching of the path is based on the hierarchy theory and the normative structure theory,it is concluded that these two paths is a part of the interestbalance path,and the path is summarized as: to measure the necessity of the judgment?to clarify the interest parties?to choose the measure objects and to determine the prior party to protect?to measure the degree of protection and the profit of the other parties?came to the conclusion stage in judgment.