Legal interpretation in the administrative trial and the loopholes

Elements of legal norms and legal effect by the two parts, the constituent elements are met, that is legally effective. The application of legal norms, that is, the facts of a particular case to judge, finds its constituent elements to meet the legal norms, resulting in legal norms under the legal effect of the process. This process can be divided into four steps: Elements of the contents of statutory interpretation and determine facts of the case investigation and determined that the legal facts of the case whether the constituent elements, the legal consequences. The four steps are not independent, but influence each other. to be accurate and comprehensive application of the Law on the use of legal interpretation can not be separated on the accurate interpretation of legal norms, the process of application of the Law is a legal process of interpretation.

First, the administrative Law judge's interpretation
The interpretation of administrative Laws and regulations, together with the interpretation of other areas, and its function is, the Law applicable to the legal provisions applicable to the case identified by the fact that norms for the content of the law Suoyu in doubt, through the interpretation of the law, so that understanding of the law applicable to determine the meaning of the law. legal interpretation of the aim is to discover, to determine the true intention of the legal norms. legal interpretation can not rigidly adhere to the literal meaning of the text articles, but should in fact explore the normative intent of legal norms, legislators to determine the use of legal language to the purpose.

Interpretation alone, the administrative trial methods of legal interpretation and legal interpretation generally similar, including literal interpretation, systematic interpretation, historical interpretation, the purpose of such interpretation and constitutional interpretation.

(A literal interpretation
Refers to the literal interpretation of text meaning of legal terms as a starting point, in general, to understand the meaning of the language used by the legal provisions on the interpretation.

In the literal interpretation, the more likely to have differences is illustrative and provided for an explanation. Legal norms for their normative issues, in general, three ways of adjusting, cited type, enumeration type plus general type, general type. Illustrative plus general provisions of law cited the short article that listed the applicable legal norms in a typical matter, used "other", the "other" to be provided for such general terms.

1, "and" outside but not on "other" in
Just from the context, the "other" word is really a polysemous word, according to <"Modern Chinese Dictionary>> interpretation of its provisions and cases cited show that the interpretation of relevant provisions of two explanations: First," said the deficiencies cited "the second is that" after the Shawei list. "former explanation is the so-called" substandard ", the latter explanation is the so-called" and the "list-type provisions in essence. Therefore, unless there are special articles that involves "such as" In principle, the provisions of said regulations should be interpreted as an example, and not interpreted as enumerated provisions. enumerate the four only the most common, others such as taxi, subway, train, also belong to the public transport tool.

2 illustrates general issues and matters can only be consistent
In the illustrative provisions, the cases show term of the temple or of any other legal matters of the type have been very clear, but general terms are often abstract, vague, uncertain, or a pretty nature, how to understand the cases show matters and general matters relationship and how to determine the broad range of issues? in law, to a Latin legal proverb interpretation by Example provides a very appropriate that "illustrates matters is not the temple of the general term does not include illustrative matter express the nature of the different issues . "In other words, the interpretation of matters of general illustrative matter should not be provided with the nature of the matter is inconsistent, only illustrative matter should be included consistent with the issues. Of course, illustrates the nature of matter, and some ports have been set out in articles However, most articles did not specify the need to understand the applicable law himself.

(B teleological interpretation
Purpose is to explain the purpose of legal norms as the basis for interpretation of an interpretation of legal doubt. The purpose of explanation lies in the value of solving conflicts between norms.

Carrying out the purpose of explanation, may limit the language of articles shrinking, it may be the language of articles expansion.

(III system explained
System refers to the interpretation of the law's position in the legal system, or with the relevant legal provisions regulate the relationship between the intention to clarify the interpretation method. The law does not regulate the terms of the independent existence of the law exists between the terms organic contact, therefore, the understanding of legal provisions, the law must be placed into a whole.

Should be noted that, during the legal interpretation should note that there are some exceptions to legal provisions, according to the internal logic of articles grasp the core exception is properly understood to apply the provisions of the foundation. Exceptions often "but proviso "or" otherwise provided "in the form of statements, in the same legal provisions may also be in different legal provisions.

(Four other interpretation
Other explanations of the more common methods of historical interpretation and constitutional interpretation. Historical interpretation, is the search for information on legislation to find out the true legislative intent of lawmakers was an interpretation. Where legislative information, including the legislative process all records, documents, such as preparing data, prepare a draft, written reasons for such legislation. constitutional interpretation is an interpretation of the law, if there are several conclusions can be avoided as long as one of the declaration of the results section of the Act unconstitutional, it should select the kind of interpretation of conclusions.

(Five different ways to explain the relationship between
Different interpretation is likely to come to different conclusions, how to make a choice between the various interpretation methods it? That is, there are all kinds of interpretation between what kind of relationship. This problem is rather complex, from the theory and practice Research point of view, a different interpretation of the bits between the teams have a certain relationship, but both voiced fixed, can not be arbitrary choice, but often there is the complementary relationship between the specific circumstances of the case requires specific analysis. In the case Select a specific interpretation generally be considered from the following aspects: Links to Research Papers Download http://www.hi138.com 1, literal interpretation has priority.

2, the aim is to explain the events to explain the value of guidelines, with independent value.

3, historical interpretation, systematic interpretation and other interpretation methods are often not independent, are the legal means to confirm.

Second, the administrative law in the application of the loopholes
(A loopholes and how extrajudicial
In the process of application of the law, even through legal interpretation, the existing provisions may still not meet our regulatory requirements. There should be the current law also has failed to regulate the situation norm, then so there will be loopholes. Legal loopholes exist is limited by the nature of human reason, legislators and social situation in the minds of ill-such as changes caused by objective reasons. At this time, for the realization of the purpose and value of law, the law applicable in respect of the need for legal loopholes.

Of course, not all legal matters have not been standardized are loopholes in the law, only for the purpose of legislation should be standardized to achieve has not been standardized but matters would fall under the legal loopholes. For some legal matters may be based on their own value judgments that should not be adjusted so deliberately by silence, the kind of does not violate the legislative intent not provided, so not a legal loophole, and belong to the scope of outer space law.

(B loopholes and Administration by Law
Loopholes and legal interpretation of the difference is whether the language of articles may be within the scope of legal interpretation in the law of "the language of possible" within the law clear, specific, and therefore its not exceed the articles covered the scope of the law it has been super-added content is the law of "the possible text," which in a sense a "legislative" in nature. Of course, "the letter may be" the boundaries are not always very clear.

Complement the legal loopholes, such as analogy, Limit of purpose, but the requirements of implementing the principle of equality, not only to prevent arbitrary, and can promote the realization of justice, it is in the field of administrative law, in addition to administrative punishment by the legal doctrine of limited punishment allowed the loopholes, the general recognition of the legitimacy of the loopholes. but the loopholes in administrative law, and civil law areas are widely recognized compared to the principle should be limited by law to retain.

The principle of legal reservation is made only in the executive authorities under the legal authority to engage in acts of law does not specify if the executive can not be based on their understanding of the legislative purpose, its own laws and regulations, including the creation of a legal supplement. But the legal preservation and does not apply to all administrative areas. administrative proceedings are for the review of administrative action, if the Administration acts in an administrative law can not be added, the court in the administrative proceedings would be no possibility of legal supplement. Therefore, in the field of administrative penalty , the collection of non-state property and financial, tax and other basic system of administrative litigation in these areas should not be legal to add.

Second, the method of the loopholes
Administrative law proceedings because of the complementary approaches, "according to law" the principle of constraints, there are subtle differences compared with the civil law. Administrative Litigation Law, including complementary approaches should be applied by analogy, the purpose of expansion and contraction limited purpose.

Analogy refers to the law expressly provides that the legal provisions applicable to non-be provided directly, but the important characteristics of the legal provisions expressly provided in the same case type. Analogy is equally applicable legal principles and based on justice requirements, the same thing should be the same treatment.

Limit of purpose, is the language of the law should cover a particular case type, but should not bear with the case according to type of legislative purpose, the Department of the legislators for failing to be excluded, so for the purpose of implementing the legislation, but will The case-based exclusion of a legal supplement method.

The purpose of expansion, by contrast, refers to the intention of implementing the laws and regulations, the provisions of this Act is not covered by the case of defined type, including in the Act shall apply to the law within the scope of supplementary methods.

Third, the administrative law applicable in the interests of the measure
Administrative Law and an important difference between civil law, administrative law is to adjust the public interest and private interests. Administrative proceedings on behalf of public interests always has to face the administrative authorities and private interests between the executive relative to the interests of disputes, the judge can good balance between public interests and private interests, often not only related to the case of justice, also related to the trend of social values. Furthermore, application of the law are often not only a unique result, you need to make a choice between several possibilities.

Interests of the measure emphasized that the specific circumstances of the case, therefore, there can be a standard, unified model, but the interests of justice as a way to measure, there is always something in common to follow.

The executive authorities in the interests of law enforcement measures, if not pay attention to the use of the method, the surface of its administrative action may be legitimate, in fact it can not be generally recognized.

In the field of administrative proceedings, and some system design also reflects the interests of the measure's use. <<Administrative Procedure Law to explain>> ���� eighteen is measured on a similar situation after the interests of the product. Of course, in judicial practice, the use of the terms , still need to be cautious. Links http://www.hi138.com Research Papers Download