Weighing and balancing of principles in cases with rule paradoxes

作者：Zhu Xinli; Yu Jun^*

来源：Semiotica, 2017, 2017(216): 339-361.

DOI：10.1515/sem-2015-0084

• rule paradoxes
• principle
• weighing
• balancing
• sociosemiotic approach

Cases with rule paradox are common in Chinese legal practice. The result of the reasoning process in cases with rule paradox is usually exclusion of the application of the seemingly applicable rules and creation of exceptions to the original rules. Therefore, interpreters have a higher standard to meet in their reasoning. The traditional method of "teleological restriction" is susceptible to the criticism of insufficient reasoning, but the method of principle weighing and balancing can enhance the persuasiveness of the reasoning process. According to the law of competing principles proposed of Alexy, rules are produced after principle weighing and balancing. If we reverse Alexy's law, any rule can be reduced to principle weighing and balancing. This reversal provides theoretical basis for our method of handling cases with rule paradox, which allows interpreters using sociosemiotic approach to rediscover the missing principles and factual elements in individual cases and to reopen the process of principle weighing and balancing before they make decision.

• 出版日期2017-5
• 单位浙江大学