Application of Law: Grounds of Substantive Rights, Citations of Legal Norms and Methodological Issues
摘要
Similar to the judgment’s reasoning in the fact-finding field which shows the focus of this contribution, the application of law plays a significant role in adjudicative techniques as well. Traditionally, the issue of legal application methods belongs to the research of jurisprudence. Nevertheless, such an issue is also crucial for understanding civil proceedings since it may reveal how the grounds for making judgments are established and then matched with the facts in individual cases. Therefore, it is necessary to understand the process of legal interpretation from the perspective of procedural law. Among others, the technique of subsumption (Subsumtion) is a very useful tool which attracts much attention in legal scholarship and practice. The process of subsumption is capable of clarifying the logical relationship among varied items or expressions within the judgment through a certain degree of abstract construction, then trying to expose possible omissions or errors. These techniques are suitable not only for simple cases, but also for difficult cases involving complex legal issues. Other than jurisprudential scholars, substantive law scholars, who follow the tradition of legal dogmatics/hermeneutics in continental law systems, can also adopt the subsumption technique. And, when it comes to a more practical level, it matters not merely how to quote legal norms in the judgments’ reasoning, but also whether the plaintiff should indicate the specific legal provisions in the claim form, rather than use the abstract expression “in accordance with the provisions of the Constitution and the laws”. In fact, the issues to be discussed hereby cover not merely the fundamental approaches of law at macro-level, but also the specific rules at meso-level, and the usage of specialized terms and concepts at micro-level. It is worth noting that the judgment’s reasoning includes the reasoning of both judgments and other kinds of decisions made by judges. Concentrating on the main aim of this contribution, this chapter is limited to the reasoning of first-instance civil judgments.