On The Legal Application Of Analogy Interpretation

There are some kinds of legal methods derived from the “analogy” thinking.The most common methods are analogy reasoning,application by analogy and analogy interpretation.Whether in theory or practice,people always confuse these three methods.In the face of cases in which the established rules of law cannot be directly applied,the person who applies the law generally resorted to any of them.The analogy method is difficult to properly apply in appropriate situations,and the analogy interpretation is often submerged in the ambiguous analogy concept.Therefore,it is crucial to explain the theoretical concept of the analogy method,make it distinguish from the relevant legal methods,and present the operation mechanism of this method clearly.To examine and reflect from the perspective of judicial practice is the necessary way to make systematic research on this method.The initial study of analogy interpretation should be carried out according to two clues: the clue of "analogy" and the clue of "explanation ".These two are not independent of each other.The two clues should be combined to arrive at a comprehensive concept of analogy interpretation.The impression of the method of analogy interpretation begins with the characteristic of analogy.Based on similar reasoning,the conceptual prototype of the this method is constructed.It is usually defined as legal interpretation by analogy.This concept tends to focus on finding "perfect" objects of comparison to achieve a perfect result.It has caused the real meaning of the analogy interpretation method is often ignored,and the legal interpretation characteristic of the method is hidden.In fact,the most central part of the approach is the search for legal premises that can be used to adjudicate specific cases.The process of analogy interpretation is actually the process of finding the legal provisions.However,the analogy interpretation is not the mechanical superposition of“analogy” and “interpretation”.The analogy thinking must realize its internalization in the interpretation method,so that this method can distinguish the attributes from the analogy reasoning and analogy application while still taking into account the utility of the other narrow interpretation methods.Analogy interpretation is also a dynamic explanation tool to deal with many problems of judicial practice.Studying the operation mechanism of the method(that is,the application premise,operation process and application core)is the most important aspect to master the method.Analogy interpretation is generally used insome hard cases without clear legal premises.The "uncertainty" cannot be eliminated by methods such as literal interpretation,system interpretation and so on.It must rely on value judgment to expand the content of the article according to the situation,so that "uncertainty" is specifically determined and finally suitable for the specific case.The operation of analogy interpretation is more complex than other methods of interpretation that are simple and intuitive.The characteristics of "analogy" determine that the method must integrate induction and deduction,so that the surface of the commonness can upgrade to the upper commonness,at the same time,the core of the interpretation will also be revealed.The successful analogy of one thing to another often requires pursuing the essence of things in order to find the legitimate basis.In the field of law,legal principle should be synonymous with the essence of things.Compared with “the essence of things”,the connotation and direction of legal principle is more specific.It is more integrated with the legal rules which are the premise of legal reasoning.Therefore,the legal principle is the technical core of forming the conclusion by analogy interpretation.In judicial practice,analogy interpretation is used widely.,It can be found that judges use this method no less frequently than other common methods of legal interpretation by reading many judgments.Further analysis of the relevant judgment,we can also find that in different case areas,the application of this method is also extremely distinct.Analogy interpretation is neglected,implicitly used or misused in some cases.However,as scholars and practitioners attach importance to this method,the application rules of it become more clear and systematic,this method will play an important and comprehensive role in judicial practice.Analogy interpretation is a legal interpretation method which combines the thinking of "analogy " and distinguishes from other legal interpretation methods.The analogy interpretation has specific application situation,complete operation flow and clear technical core.Its application steps are clear and normative.In civil,criminal and administrative cases,analogy interpretation plays a positive role in clarifying the meaning of the law,and making the law better adapted to life affairs.As a kind of legal interpretation method which can expand the boundary of "literary meaning" and take into account the value judgment,it is of great practical significance to clarify the legal premise,resolve the judicial problems and realize the fair “rule of law”.