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Jurisprudence mind map
The third edition of Introduction to Jurisprudence by Shu Guoying summarizes the introduction, ontology, law and society, operation theory, etc. The introduction is detailed and I hope it will be helpful to everyone!
Edited at 2024-02-07 13:13:29- One Hundred Years of Solitude Character Relationship Chart
One Hundred Years of Solitude is the masterpiece of Gabriel Garcia Marquez. Reading this book begins with making sense of the characters' relationships, which are centered on the Buendía family and tells the story of the family's prosperity and decline, internal relationships and political struggles, self-mixing and rebirth over the course of a hundred years.
- One Hundred Years of Solitude Character Relationship Chart
One Hundred Years of Solitude is the masterpiece of Gabriel Garcia Marquez. Reading this book begins with making sense of the characters' relationships, which are centered on the Buendía family and tells the story of the family's prosperity and decline, internal relationships and political struggles, self-mixing and rebirth over the course of a hundred years.
- Project Management Process Template
Project management is the process of applying specialized knowledge, skills, tools, and methods to project activities so that the project can achieve or exceed the set needs and expectations within the constraints of limited resources. This diagram provides a comprehensive overview of the 8 components of the project management process and can be used as a generic template for direct application.
Jurisprudence mind map
- One Hundred Years of Solitude Character Relationship Chart
One Hundred Years of Solitude is the masterpiece of Gabriel Garcia Marquez. Reading this book begins with making sense of the characters' relationships, which are centered on the Buendía family and tells the story of the family's prosperity and decline, internal relationships and political struggles, self-mixing and rebirth over the course of a hundred years.
- One Hundred Years of Solitude Character Relationship Chart
One Hundred Years of Solitude is the masterpiece of Gabriel Garcia Marquez. Reading this book begins with making sense of the characters' relationships, which are centered on the Buendía family and tells the story of the family's prosperity and decline, internal relationships and political struggles, self-mixing and rebirth over the course of a hundred years.
- Project Management Process Template
Project management is the process of applying specialized knowledge, skills, tools, and methods to project activities so that the project can achieve or exceed the set needs and expectations within the constraints of limited resources. This diagram provides a comprehensive overview of the 8 components of the project management process and can be used as a generic template for direct application.
- Recommended to you
- Outline
jurisprudence
introduction
legal values
legal thinking
practical thinking
positive law
problem thinking
evaluative thinking
legal method
Ontology (quiet)
The essence, characteristics and functions of law
name of law
concept of law
law as it should be and law as it is
natural law and positive law
Natural Law (Monteguez, Rousseau, Locke...): evil laws are illegal Modern natural law: reason. basic human rights. Modern natural law: law is necessarily subordinate to morality
Positive Law (Comte, Austin, Kelsen, Hart...): Evil law is also law Law is a product of human society, a code of conduct created by consciousness. =Actual existence, actual effectiveness, precise analysis. Has no necessary relationship with morality
national law
Formulated by specialized national agencies (statutory law/statutory law)
Created by a court or judge in a decision (case law)
Common law (unwritten law)
Others (canon law), etc.
Characteristics of law 6
Normative
social norms that regulate relationships or interactions between people Three modes: do, don’t, and should Certainty, command, authority and arbitrary, choice (right) guidance and certainty (obligation) guidance
national will
One yuan. Developed or approved by state agencies.
State mandatory
State coercive power is provided for by law
universality
In a certain social relationship or a certain aspect between people, equality and repeated application. territorial. limited.
procedural
cornerstone of social institutionalization. Ensure legal efficiency and authority. Limit and restrict people's arbitrariness and randomness.
Justiciability
Contestability (valid basis for prosecution and defense)
Justiciable (direct basis for legal judgment)
the role of law
·Exhibition of the operation of national will and rights. ·Determined by a certain economic foundation and a reflection of the material production mode of a certain society.
·Adjust people's behavior, thereby affecting social life or relationships. ·It has an impact and results on people’s external activities, and then has an impact on people’s inner world such as emotions and beliefs.
Normative functions: guidance, prediction, evaluation, enforcement, education
Social role: maintain social order and peace, promote social change, ensure social integration, control and resolve social disputes and disputes, and promote the realization of social value goals
Subsocial system: economics, politics, law, kinship
Limitations: limited, only one method, inability to completely correspond to law and facts, legislative gaps, lag, rigid application of general and abstract laws to specific and individual cases, inconsistent interpretation of legal language
Content and form of law
content
Law is the unity of content and form. Content is the sum of the internal elements of a thing, and form is the structure and organization of the content.
Content of law (intrinsic elements)
Legal norms and elements
Legal rules and legal principles
Core: Legal rights and obligations Assumptions and legal consequences
Legal System
law Department
Legal rights and obligations
concept
Legal rights: The scope of behavior governed by free will permitted by the state through law. Rights and interests are closely linked. State agencies - powers; local agencies - powers; citizens - rights When citizens have their rights violated, they can only ask for protection from state agencies, but cannot enforce it themselves.
Right to freedom (basic)
Right to request (entity content)
Right to sue (protection means)
Obligation: due behavior or future behavior. Mandatory performance and cannot be transferred at will or in violation of obligations. Legal prerequisites for legal liability. Legal consequences for failure to perform obligations are legal liability
Classification
importance of social content
Fundamentals (Constitution)
General (contract law, civil law, etc. other than the Constitution)
Scope of effect
Generally (towards the world), excluding infringement from others. Passivity and inaction. "No one is allowed to XXX"
Special (for people), to perform or inhibit certain behaviors. Contracts, loans, marriage, parents and children
causation
First nature (original), directly granted or authorized by law. Property ownership, contracting rights. Tax obligations, military service obligations
Secondary nature (redress) arises when original rights are infringed. Right of action and right of request. Liability for breach of contract, tort liability, administrative compensation liability
will and interests
Right to Action & Negative Obligation: When the subject of the right is qualified to do something, the subject of the obligation is in a passive state to avoid doing anything that may infringe on the subject's freedom of action = the subject of the right must not interfere, prevent or threaten the subject of the right with dire consequences.
Right to accept & positive obligation: When the subject of rights has the right to accept, the subject of obligation is in a state of active action of giving something or doing some kind of treatment.
Different subjects
Individual (natural person)
Collectives (social groups, enterprises and institutions, legal persons)
form
written (statutory law)
Legal provisions
normative legal documents
Normative legal document system
advantage
Be clear and specific
Strict procedures for modification and abolition
Conducive to social security and freedom
Better preventive effect
Conducive to promoting social reform
Code (Civil Law System)
unwritten
Customary law
Case law (common law, UK)
advantage
Easily adapt to social reality
There is no issue of deviating from the original intention of the legislation
Easily bring out the creativity of judicial officials
Law
civil law system, code
France (individual rights), Belgium, Spain, Portugal, Italy, etc.
Germany (social interest), Austria, Switzerland, Netherlands
Sources of law: statutory laws, constitutions, administrative regulations, etc. Cases and legal principles have no formal legal effect. Emphasis on substantive law.
Japan, Egypt, Algeria, Ethiopia, Central America
common law system, jurisprudence
U.K. Unitary system. The unwritten constitution. The U.S. Supreme Court can review general laws for unconstitutionality.
USA. Federal and state laws. Written constitution. British courts have no power to review laws made by Parliament
Common law sources: both statutory law and case law. Re-procedure method.
India, Pakistan, Singapore, Myanmar, Canada, Australia, Malaysia, New Zealand and Africa
laws and regulations It should be: order, allow, prohibit
legal rules (significance)
Concept: a legal norm that specifically stipulates people's legal rights, obligations, and consequences in a certain logical structure.
logical structure
Behavioral patterns under certain conditions
Assumptions: region, time, subject, situation (The omission of legal provisions does not mean that they do not exist)
eg: State staff take advantage of their positions...
Behavioral pattern: specific behavior or activity pattern
can be
right
Should be
obligation
Don't do it
Legal consequences: bear the corresponding consequences (Su Li: In reality, judges start with legal provisions based on consequences)
Affirmation (legitimate): protection, permission, reward
Denial (violation): sanction, denial of protection, revocation, suspension, request for restoration or compensation
Classification
Authorization and Obligation
Authorization
Rights: citizens and legal persons
Function: State agency staff
obligatory
Imperative: should do
Prohibition: Do not do
Force and arbitrariness
Mandatory: Must be in accordance with legal rules, most of public law and criminal law, and also found in private law contract law
Arbitrariness: personal will within a certain limit, related to the transfer of ownership in contract law; "dispose upon complaint" in criminal law
Certainty, entrustment and applicability
Certainty: The content of legal rules is clear. No need to invoke or refer to other legal rules
Delegation: The legal rules are not clear, but only some general instructions, entrustment or authorization...with specific provisions
Applicability: It does not stipulate specific behavioral patterns for people, and the regulations can refer to or cite other legal rules. eg: Article xx of the "Contract Law" stipulates that "...refer to the relevant provisions of the sales contract"
Applicable method
cover
Legal provisions: the expression form or carrier of legal rules (Express)
A legal rule is expressed by several legal provisions in the same normative legal document - "Criminal Law" Corruption Crime
A legal rule is expressed by several legal provisions in different normative legal documents - the "Constitution", "Land Management Law" and "Criminal Law" all stipulate that "the sale, purchase and illegal transfer of land is prohibited"
The elements of different laws and regulations are expressed by the same legal provision - the "Drug Administration Law" prohibits the production and sale of counterfeit drugs
A legal provision only expresses a certain element or several elements of a legal rule
legal principles
Concept: A legal norm that provides a certain basis or origin for legal rules, a comprehensive and guiding principle or value criterion. Highly general ·The unique nature of legal principles as a norm is that it requires that the content it stipulates be realized to the greatest extent possible within the possible scope of relevant laws and facts. · "Principle" is deontology, what it should be. "Value" is axiology, what is the best
Classification
axiom and policy
Axiomity: derived from legal principles. eg: Equality under the law, good faith, one property, one right, prohibition of consanguineous marriage, statutory crime, presumption of innocence
Principle: Targeted principles formulated based on the specific political, economic and social conditions of a specific country within a certain period of time
fundamentality and concreteness
Basic Principle: The scope of social relations to be adjusted is wide
Specific principles: legal principles that only adjust a specific social relationship
substantive and procedural
Substantivity: Directly involves the provision and confirmation of substantive rights, obligations, powers, and responsibilities. eg: civil law, criminal law, administrative law
Procedural: Principles of rights and obligations that ensure the implementation of procedural aspects by entities. eg: Principle of avoidance, principle of defense, principle of equal legal status in procedural law
Function
Guidance: As the basis for legal interpretation and reasoning, it provides guidance for the correct application of legal rules. limiting frame
Evaluation: A standard for substantive evaluation of the effectiveness of legal rules and positive law as a whole, revealing the lack of legitimate basis for legal rules and demonstrating exceptions to legal rules. When legal rules cannot be applied to an individual case, legal principles can negate the need to change the legal rules to ensure justice for the individual case.
Referee: directly used as the basis or reason for individual case decision. A judge cannot refuse to hear a case on the basis that no clear legal rule applies. Judgment needs to be specific as a case-by-case basis
Applicable conditions and methods
Applicable conditions (Narrowing the uncertainty of legal principles)
Only after exhausting legal rules can legal principles be applied
Unless it is to achieve justice in the individual case, legal principles may not be directly applied without discarding legal rules.
Applicable method
Balance (for a case, more than one principle is applicable, and it needs to be weighed between competing principles)
The difference between the two
in nature
Scope of application
initial characteristics
Conflict of rules and competition of principles, how to resolve them
legal interpretation
concept
Necessary explanations of the contents of laws and regulations made by certain people, organizations and state agencies
Features
The object is specific: through understanding and interpretation of legal texts and the historical background in which the law was formed, to explore the legal meaning they express
·Practical: Legal interpretation occurs when the rights and obligations of the parties in individual cases are determined. · Combine legal provisions with facts and interpret the law within a factual framework
Cannot deny or doubt the premises of the explanation
Purpose: Legislators use law to carry a certain social purpose they pursue, which is mutually displayed and balanced with legal values and the purpose of society itself.
All interpretive activities are subject to the "hermeneutic cycle": the grasp of the whole needs to be based on the understanding of its components, and the understanding of the parts is based on the understanding of the whole
Goals and methods
Target
Subjective theory: Legal interpretation is to explore the intentions and purposes of legislators when formulating laws. The law can be misused if those who apply it are left to interpret the law based on their own position. The political system of separation of powers cannot tolerate those who apply the law becoming the ones who make the law due to legal interpretation.
Objective theory: The law has separated from the original legislative body and become an independent objective existence since it was promulgated. The purpose of legal interpretation is to explore the meaning inherent in the law. Legislative intention is the product of compromise among many legislative wills, and truly independent legislators do not exist. Insisting on interpreting the law from the text can better enable the law itself to adapt to the development and changes of social life
method (used in sequence)
① Literary explanation
literal interpretation
Limit interpretation
Expand explanation
②Historical explanation
③System explanation
④Purpose explanation: the last way to solve the problem of explanation
explanatory system
Formal (statutory interpretation)
legislative interpretation
National People's Congress Standing Committee: Interpretation of the Constitution and Laws
Interpretation of laws: further clarify the boundaries or make supplementary provisions of laws and statutory provisions
Judicial interpretation
trial explanation
Supreme People's Court
Prosecution explanation
Supreme People's Procuratorate
joint explanation
effect
More operable
Solve the gaps or contradictions brought by the development of social life to the law
Solve doubts in the application of laws and unify people's understanding
Explain how people's courts at all levels cooperate with each other in hearing trials and determining jurisdiction in accordance with legal provisions.
Make up for legislative deficiencies (legislative omissions, inconsistent legislation, unmatched legislation, inconsistency between substantive and procedural laws, lagging legislation, etc.)
administrative explanation
The interpretation of the laws and regulations enacted by the State Council and its competent departments when exercising their powers
The provisions of administrative regulations are interpreted by the State Council: the Legislative Affairs Office of the State Council reviews the draft regulations and puts forward opinions → the State Council agrees → the State Council issues or the relevant administrative departments authorize the State Council to issue
The application of administrative regulations shall be interpreted by the relevant administrative departments. If there are difficulties or different opinions, the report shall be submitted to the State Council. The State Council shall instruct the Legislative Affairs Office to submit a reply to the State Council for approval, and then directly reply to the relevant administrative departments and send a copy to other relevant departments.
Administrative regulations formulated by the administrative department shall be directly interpreted by the administrative department
place
·Has no power to interpret the constitution, laws and administrative regulations ·Only statutory local state agencies have the power to interpret ·Effective within the jurisdiction of this agency
Local laws and regulations are governed by local state power agencies (National People's Congress and the Standing Committee of the National People's Congress)
The specific application of local regulations is determined by local administrative agencies (governments)
informal
academic explanation
Arbitrary interpretation: The interpretation of the law by parties, agents or individual citizens in daily life
Legal System
system
concept
An organically linked whole formed by dividing all current legal norms formulated and recognized by a country into several legal departments based on certain standards or principles.
feature
home country
Current legal regulations
There are standards or principles for classification
Harmonization
Department (Department Law)
meaning
A general term for similar legal norms formed by dividing all current legal norms in a country based on certain standards or principles (same adjustment objects/same adjustment methods)
feature
Similar legal norms
relative independence
coherence
relative stability
openness
Criteria for the classification
The theory of primary and auxiliary standards: the adjustment object (social relationship) is the main one, and the adjustment method is the secondary one.
Chinese legal system 7
1.Constitution and constitution-related laws
The fundamental law. Adjust the relationship between the state and citizens. the most basic constituent norms of a specific political community
Norms for the composition and organization of the different state agencies
Authorization. How international institutions are organized, what powers they are given, and how they are exercised
Norms conferring constitutional rights
Restrict and direct public rights
normative documents
Constitution and its amendments
Organic Law, Representative Law, Regional Ethnic Autonomy, Basic Law of the Special Administrative Region, Election Law, Legislative Law, Rules of Procedure of the National People's Congress, Nationality Law, National Emblem Law, Territorial Sea and Contiguous Zone Law, Exclusive Economic Zone and Continental Shelf Law
2.Civil Law and Commercial Law
civil law
common law
Personal and property relations. Personal rights, property rights, creditor's rights, inheritance rights, marriage and family
commercial law
special law
Business conduct and relationships. Economic actions or relationships. Maritime law, company law, partnership law, sole proprietorship law, bill law
3. Administrative law (Implementation of the Constitution)
generally
Administrative Organization Law, Conduct Law, Administrative Supervision Law, etc.
specialized
Customs Law, Drug Control Law, Sports Law
4. Economic Law
Wide range of fields, public and private interpenetration
Control of professional organizations, competition, and monopolies
"Anti-Unfair Competition Law", "Auction Law", "Tendering Law"
Guidance and control of finance, currency and trade
"Commercial Bank Law", "Banking Supervision Law", "Accounting Law", "Securities Law" and "Audit Law"
5.Social Law
Labor relations, social security and social welfare relations
"Labor Law", "Labor Contract Law", "Mine Safety Law", "Unemployment Insurance Regulations", "Disabled Persons Protection Law", "Minor Protection Law", "Trade Union Law", "Safety Production Law"
6.Criminal law
7. Litigation and non-litigation procedures
litigation
"Administrative Procedure Law", "Civil Procedure Law", "Criminal Procedure Law" and "Special Maritime Litigation Procedure Law"
non-litigation
"Arbitration Law", "Lawyers Law", "Organizational Regulations of the People's Mediation Committee"
one country, two systems
Hong Kong common law, Macau mainland law
Legal liability and legal sanctions
responsibility
concept
The subject fails to perform its legal obligations or agreed obligations, or although the subject does not violate legal obligations, it should bear certain adverse legal consequences simply because of legal provisions.
cause
Illegal
breach of contract
no-fault liability
Characteristics: statutory, mandatory
General legal liability composition (fault)
Illegal behavior
Damage fact (objective existence & possible but not yet occurred)
causation
Actions that serve as causes are subject to legal liability. The behavior as a condition is determined according to the specific situation. The farther away from the result, the weaker the cause.
fault
Special legal liability composition (no fault)
Special provisions of the law
damaging behavior
damaging facts
causation
Classification and competition
Classification
Civil, criminal, administrative, unconstitutional
(Subjective) Fault, no fault
Fault: intentionality and negligence
No fault: It has nothing to do with intentionality and negligence, but has a causal relationship with the damage (industrial accident) Linked to the insurance system. Individuals and society are responsible for
Position, person
Coopetition (focus on negative consequences)
Generalized competition and cooperation: the same illegal act leads to the coexistence of multiple legal liabilities
Can be investigated simultaneously
Concurrence in the narrow sense: coexistence and conflict of different legal responsibilities of the same department. eg: Liability for breach of contract and liability for tort
Choose any one
*Different forms of the same liability within the same legal department are not competing liabilities. eg: Infringement of reputation rights requires tort liability. The victim can also request to stop the infringement, restore reputation, apologize, compensate for damages, etc.
imputation and exemption
Attribution (attribution of responsibility)
concept
Activities to judge, identify, investigate and reduce legal liabilities arising from illegal acts.
in principle
Liability is statutory
It is not a crime if there is no express provision in the law
Civil law allows analogies to fill legal loopholes
Commensurate responsibilities
Qualification: Only by first determining the nature of the illegal act can the nature of legal liability be confirmed
Quantitative
Be commensurate with the harmful consequences of the illegal act
Compatible with the degree of subjective fault of the perpetrator
Be consistent with the cause of the perpetrator’s illegal behavior
Take your own responsibility
You are responsible for your own crimes, and you are not responsible if you do not break the law.
exempt
concept
Due to the occurrence of certain legally stipulated conditions or legally permitted conditions, the perpetrator is partially or completely exempted from legal liability.
Disclaimer
legal
Disclaimer of limitation
Legal liability has arisen
Humanitarian exemption
Legal liability has arisen
Exemptions from force majeure, legitimate defense, and emergency avoidance
No legal liability arises, only damaging behavior and facts of damage appear
Surrender or perform meritorious service
determined
voluntary agreement
victim gives up
effective remedy
sanctions
concept
Compulsory punitive measures implemented by specific state agencies in accordance with legal authority and procedures against offenders in accordance with their legal responsibilities
type
Civil (Property): Damages. Eliminate the motivation for illegal behavior by depriving them of the proceeds from illegal behavior through legal sanctions.
Criminal (liberty): main punishment and additional punishment
Main punishments: public surveillance, criminal detention, fixed-term imprisonment, life imprisonment and death penalty
Additional penalties: fines, deprivation of political rights, confiscation of property
administrative
Administrative sanctions: National civil servants who have neglected their duties or authorized law enforcement personnel
Administrative penalties: citizens, legal persons
Mandatory Punishment: Administrative Agencies
Reeducation through labor: not enough to hold criminally responsible offenders capable of working
Unconstitutional
Supervisory body: National People’s Congress and Standing Committee
The origin, validity and classification of law
origins of law
concept
A source of norms or guidelines that is recognized as having the force of law, the authority of law, or having legal significance and serves as the basis for judges to hear cases. The origin of law = the major premise of legal reasoning.
Classification
Formal (Contemporary Mainland China)
Statutory law with the Constitution at its core
constitution
Formulated and revised by the People's Congress. It is proposed by more than 1/5 of the deputies of the Standing Committee or the National People's Congress, and approved by a majority of more than 2/3 of the deputies. China's current Constitution was adopted at the Fifth Session of the Fifth National People's Congress in 1982. 52 amendments so far.
law
National People's Representative Meeting standing committee
Basic Law (National People's Congress)
Laws other than basic laws (National People’s Congress Standing Committee) ·Trademark Law/Cultural Relics Protection Law/Resolutions or decisions made by the National People’s Congress and its Standing Committee
Administrative regulations
State Council
26 departmental regulations
14 directly affiliated institutions
local regulations
Local People's Congress and its Standing Committee
State / Province / State
City (district), autonomous prefecture
Urban and rural construction and management
environmental protection
Historical and cultural protection
(local regulations)
people's government
National Autonomy Regulations
Autonomy Regulations: Comprehensive normative legal document
Separate Regulations: Regulations on a certain aspect of matters...
Special Administrative Region normative documents
Hongkong
Macao
Special Economic Zone Normative Documents
7 Shantou, Hainan, Shenzhen, Xiamen, Zhuhai, Kashgar, Horgos
international treaty
Treaty, charter, convention, covenant, statute, treaty, agreement, protocol, exchange of letters, communiqué, joint declaration, final resolution, etc.
Effectiveness level
power level
Order of application of legal sources
Bottom first, top first
conflict of laws rules
Different ranks: upper priority is given to lower ones
Same rank
special priority ordinary
The latter method takes precedence over the previous method
Crossing of ranks
Local regulations vs departmental regulations (State Council)
State Council→Local regulations
Departmental Regulations→National People's Congress Standing Committee
Between departmental regulations, local regulations Vs departmental regulations → State Council
Regulations under authorization Vs legal provisions → National People’s Congress Standing Committee
international treaty
Be applicable
·When a certain legislation in our country clearly stipulates that it can be directly applied → merged ·In addition → Establish domestic law to convert
conflict
Constitution above all else
Standing Committee of the National People's Congress>State Council
State Council>Government Departments
International＞Domestic with the same effect
informal
authoritative legal theory
Recognized social values such as fairness and justice
public policy
contemporary China
Habit
Jurisprudence
The Supreme People's Court issues case guidance
Policies (policies not integrated into law, including Communist Party policies related to the state or government)
Classification of laws
General classification
domestic and international law
Fundamental law and common law
General law and special law
substantive and procedural law
Special classification
public and private law
Public law: administrative law, criminal law, procedural law
Private law: civil law, commercial law
common law and equity
Federal law and federal member law
force of law
concept
The binding force or binding force of law on legal subjects
Specific subjects: non-normative legal documents
Effectiveness in the narrow sense → non-specific subject
normative legal documents
Scope (narrow validity)
time
Effective time
Announcement date
stipulate specific effective time itself
Determine the effective date of this law with reference to other laws
Trial date
date of arrival
Expiration time
Expressly abolished
The new law replaces the old law and declares the old law repealed
Relevant authorities issued a document announcing its abolition
tacit annulment
New law is better than old law
The object of legal adjustment disappears The law obviously does not adapt to the new situation
The law itself stipulates that it will be abolished upon expiration of the validity period.
retroactivity
in principle
Retrospective (retrospective)
From the past (not retroactive)
Both the old and the new (the penalties under the new law are lighter than those under the old law and have retroactive effect)
space
Within the domain
within sovereign jurisdiction
Nationwide
local area
extraterritorial
outside sovereign jurisdiction
criminal law
To people
in principle
human
Territory
Protect
Compromise (adopted by more countries)
For special crimes related to civil obligations, marriage, family, inheritance, criminal law, the law of the country of nationality shall apply
China
Chinese citizen
Abroad, Chinese laws apply unless the laws of the two countries conflict.
foreign citizen
In China, Chinese law applies, except for foreigners who enjoy diplomatic privileges and immunities who need to resolve matters through diplomatic channels.
Legal behavior and awareness
legal act
Meaning: Actions performed by people that can be legally effective and produce certain legal effects
Characteristics: social significance, legality, and volition (purely volitionless acts, such as those performed by complete mental patients, cannot be regarded as legal acts)
structure
inner
Motivation: need → motivation → behavior → purpose → satisfaction → new need (Different motives and different choices of behavior lead to different results. The law examines and evaluates motives based on the results) (Motive, Incentive, Situation, Personality α=Consequence) Motive is legitimate and legal ≠ Motive is good and evil
Purpose: Intention or negligence (criminal law); expression of intention (civil law). The manner of expression (but there is a separation between purpose and expression) determines the characterization of the legal act. "Acts without cause" (unjust enrichment, management without cause, etc.) in civil law do not rely on the existence of a cause (purpose) as a prerequisite for its establishment or validity.
Cognitive ability: full capacity, limited capacity, incapacity
external
Action: Only when a person's will is externalized into action and affects the world outside the body can it become the object of legal adjustment.
physical behavior
verbal behavior
written
oral
Means: various ways and methods adopted in the implementation of behavior to achieve the preset purpose
Specific situations: legitimate defense, emergency avoidance
Specific subject identity: parents’ custody of children, job-related crimes
Specific time and space: death announcement, burglary
Specific targets: Rape of young girls, embezzlement of public funds
Result: tangible/intangible, direct/indirect
Classification
individual, collective, country
Unilateral, multilateral
Unilateral: Will, Administrative Order
Multiple parties: contract
autonomy, agency
legal, illegal
public law, private law
Public law: legislative acts, administrative legal acts, judicial acts
Private law: civil legal acts, commercial legal acts
positive, negative
Reverse operation is illegal
positive, as
passivity, inaction
Master-slave
Expression, non-expression
Expression: an act of legal significance made by an actor based on an expression of intention
Non-expression: an act that is not expressed by the actor but is based on a certain factual state and has legal effects.
Preemption in civil law, recovery of lost property, discovery of buried property
Essential, optional
Essential: a specific form or procedure
Required: no specific form or procedure required
Completely, incompletely
completely
incomplete
invalid
Validity yet to be determined
Invalid
Legal Awareness
Meaning: People's opinions, feelings, attitudes, beliefs, and thoughts about legal phenomena as a whole
Components
Legal point of view (subjective opinion)
Legal feeling (perception resulting from perceptual knowledge)
Legal attitudes (psychological tendencies)
Legal belief (a relatively durable psychological conviction based on certain values)
Legal thought (rational understanding)
structure
Legal psychology (perceptual, low-level): unsystematic, superficial, intuitive understanding
Legal thought (rational, advanced): systematization, theorization
Classification
individual, group, society
Individuals: uniqueness and dispersion
Group: party and government, nation, class, group, family
Society: the sum total of legal opinions and ideas of society as a whole
Tradition, modernity, postmodernity
Tradition: group orientation, power, identity, obligation
Modern: rights-based, equality, freedom, rules
Postmodernity: a critical awareness of the values and principles of modern society and systems (rationality, progress, universal fairness, justice, human rights and democracy)
Legal professionals, non-legal professionals
Dominate, do not dominate
Function
understanding and evaluation
Adjustment and guidance
communication and education
lawsuit relationship
Concept: The relationship of rights and obligations between people formed in the process of legal norms adjusting social relations.
①Legal norms are the premise for the emergence of legal relationships, and legal relationships are the realization form of legal norms. ② Legal relations are special social relations that reflect volition (specific subject will & national will) ③The rights and obligations between the parties in a specific legal relationship
type
Vertical (subordinate) & horizontal (equal rights)
One-way (single service) & two-way (bilateral) & multi-way (multilateral)
Primary (Master) & Secondary (Slave)
content
Legal rights: have appropriate scope and limits
Legal obligations: subject qualifications, time, and limits of interests
main body
Concept: The holder of certain rights and the bearer of certain obligations in a legal relationship
type
Citizen (natural person)
Institutions and organizations (legal persons)
State agencies
Enterprises, institutions, and Sino-foreign joint ventures established in China
political parties and social groups
nation
Foreign trade relations, domestic issuance of treasury bills. State agencies or organizations as representatives
Qualifications
Rights and abilities: general & special
capacity
Judgment criteria: Whether one can understand, control and be responsible for the behavior
Classification
citizen
full capacity
Over 18 years old
limited capacity
Criminal Law: Over 14 years old, under 16 years old
Civil Law: Over 8 years old but under 18 years old; Mental patients who cannot fully recognize their own behavior
incapacitated
Criminal Law: Under 14 years of age; mentally ill
Civil Law: Under 8 years of age, complete mental patient
legal person
Limited, behavioral capacity and right capacity are created and eliminated at the same time
object
concept
The object pointed by the subject, the legal form of certain interests (state, society, object)
type
thing
Recognized by law, recognized and controlled by humans, economic value, independence
Not allowed to enter commodity circulation areas: oceans, mountains and rivers. Air, military facilities, weapons, drugs, counterfeit medicines, obscene books, etc.
personal
The body of a living person shall not be used as the object of property rights, creditor's rights and inheritance rights.
Blood, organs, and skin are naturally separated from the body and become external objects, which can become legal "things"
Rights holders are not allowed to engage in illegal or indecent activities with their own persons.
The exercise of personal rights shall not exceed the limits authorized by law, and the rights shall not be illegally forcibly exercised against the person of others.
spiritual products
The materialization or immobilization of mental activities
behavioral results
Physics: Physics products or buildings
Dematerialization: the effects of service actions
fact
concept
·Legal norms are the legal basis for the formation, change and elimination of legal relationships; ·Legal facts are the intermediary between legal norms and legal relationships; ·Legal facts are objective circumstances or phenomena that can cause the creation, change and elimination of legal relationships.
type
Legal events (not subject to the will of the parties involved)
social events
natural events
legal act
Good intentions and bad intentions
legal and illegal
law and society
The emergence, evolution, inheritance and transplantation of law
historical types of law
slavery laws
feudal system
capitalist law
socialist law
Law and economics, politics, science and technology, culture
law and economics
Law is determined by the mode of production, production relations directly determine the law, and productivity indirectly determines the law
law and politics
The subject of politics is class, and the core of politics is the state
Political influence and constraints on law
The basic status of political relations is an important basis for the status of law
Politics provides conditions and environment for the development of law
Content that affects and restricts law and the rule of law
The development of politics leads to the development and changes of law
The confirmation, adjustment and influence of law on politics
law and culture
Law and morality, religion, customs, policies
The difference between law and morality
Produced in different ways
Different forms of expression
The scope of adjustment is different: law adjusts social relations, while moral adjustment has a wider scope, depth and height.
The content structure is different: the law has clear rights and obligations, and morality is relatively general and principled.
Different implementation methods
The law is based on the coercive power of the state, and morality is based on people's inner beliefs and public opinion.
law and religion
law and custom
The power of habit, higher consciousness
law and policy
Legal system and rule of law
legal system
concept
A system composed of various aspects such as legislation, law enforcement, judiciary, law-abiding, and supervision of law implementation.
basic requirements
There is law to follow
Laws must be followed
Enforcement must be strict
Violations will be punished
rule of law
concept
·The rule of law is related to value goals such as democracy, human rights, freedom, and power restrictions. ·The implementation of the rule of law must be based on the existence of the legal system and the existence of the legal system
system
democratic and scientific legislative system
The legal mechanism for constraining and supervising state administrative power
Various systems to ensure judicial independence and impartiality
Institutional system that protects citizens’ rights and freedoms
An internal mutual restraint system for the proper allocation of state power
The goals, values and promotion methods of a socialist country under the rule of law with Chinese characteristics
Overall goal: Build a socialist legal system with Chinese characteristics and build a socialist country under the rule of law ①2020~2035: Basically build a country, government and society ruled by law, and basically realize the modernization of the national governance system and governance capabilities ②2035 to the middle of the 21st century: Build a powerful socialist country and comprehensively modernize the national governance system and governance capabilities, fully realize the rule of law, and build a socialist country under the rule of law with Chinese characteristics
Rule of law content
people-centered
Ensure that the people, under the leadership of the party, act in accordance with the law...
The interests, wishes, rights and welfare of the people are implemented in the entire process of governing the country according to law
Adhere to the people’s justice for the people and rely on the people to promote fair justice
Improve the legal aid system...
Make the people realize that they must also abide by the legal protection
With fairness and justice as the core
Adhere to the common values of human society
Propulsion method
The party’s leadership implements the entire process and all aspects of governing the country according to law: leading legislation, ensuring law enforcement, supporting the judiciary, and taking the lead in observing the law.
Governing the country according to law and governing according to law (the key to governing the country according to law runs through the entire process of governing the country according to law and building a socialist country ruled by law), and administration according to law (realized before 2035)
Adhere to the integrated construction of a rule of law country, a rule of law government, and a rule of law society
Adhere to the combination of governing the country by law and governing the country by virtue
Adhere to the organic unity of governing the country according to law and governing the Party according to regulations Party regulations are stricter than national laws. In principle, specific matters concerning the Party’s leadership and Party building should be adjusted by the Party Constitution and Party Rules. In principle, the Party Constitution and Party Rules do not stipulate matters reserved for legislation.
theory of operation (action)
legislation
concept
Activities for competent authorities to formulate (create, supplement, modify, approve, abolish) normative legal documents in accordance with legal authority and procedures
system
One yuan, two levels, multi-level branches ·One Yuan: Constitution ·Level 2: central and local ·Multiple levels: There are different levels at the central or local levels ·Branches: power agencies, administrative agencies, special administrative regions, special economic zones
State power organ: National People’s Congress
Local authorities: People’s Congresses of provinces, autonomous regions and municipalities directly under the Central Government
Administrative agency: local government
in principle
rank
clarity
stability
consistency
publicity
program
concept
The legal sequence, steps and methods that agencies with the power to make legislation must follow when conducting legislative activities
main stage
Proposal of legislative bills
① State agencies and personnel with the power to propose legislation submit written proposals or suggestions on the creation, supplement, modification, approval or repeal of laws to the legislative body, usually accompanied by draft laws. ②The legislative body must review and decide whether to include it on the agenda
Jointly signed by the Presidium of the National People's Congress, the Standing Committee of the National People's Congress, the special committees of the National People's Congress, the State Council, the Central Military Commission, the Supreme People's Court, the Supreme People's Procuratorate, a delegation of the National People's Congress or more than 30 representatives
Deliberation of legal cases
①The legislative body reviews and discusses legal bills that have been put on the agenda ②Deliberation by the plenary session of the legislative body, the leadership body of the legislative body, special committees and the legal committee ③The representative group is the basic form. There are also various delegation meetings, special committee meetings, legal committee meetings, presidium meetings, delegation head meetings, and representative plenary meetings.
Voting and passing of legal bills
·Constitution: Proposed by the Standing Committee of the National People's Congress or more than 1/5 of the National People's Congress, and approved by more than 2/3 of the majority ·Laws and other bills: passed by more than half of all deputies to the National People's Congress
public vote
promulgation of law
Laws passed by the National People's Congress and the National People's Congress Committee: announced by presidential decree signed by the President
"Communique of the Standing Committee of the National People's Congress"
Administrative regulations: The Prime Minister signs the Order of the State Council
Local regulations formulated by the local people's congress (standing committee): Announcement issued by the presidium of the people's congress (standing committee)
Normative documentation systematization
Features
Formulated and issued by state agencies or authorized entities
Certain rules or patterns of behavior
universal binding force
form
legal cleanup
legal compilation
(Legislative activities carried out by the highest authority) Codification
implement
law enforcement
feature
specificity
Specific law enforcement entities: state administrative agencies and social organizations authorized and entrusted by law
extensive
initiative and unilateralism
main body
administrative agencies
State Council (Central People's Government): the executive body of the highest organ of state power
Local people's governments at all levels: executive organs of local state power agencies
State / Province / State
People's Governments of Autonomous Prefectures and Districted Municipalities
County People's Government
Township and town people's governments
Administrative functional departments
Social organizations authorized by laws and regulations and organizations entrusted by administrative agencies
Lawyers Association, Sports Association, Red Cross Society, etc. or others
in principle
legitimate
Legal advantage: Administrative law enforcement activities must not conflict with existing laws
Legal reservation: Administrative agencies can only carry out certain administrative actions when expressly authorized by law.
Reasonable
fair and just
equality
due discretion
Proportionality: Choose the method that least infringes on civil rights
efficiency
judicial
concept
The application of laws is the specialized activity of national judicial organs to specifically apply laws to handle cases in accordance with statutory powers and procedures.
Jurisdiction
Judicial power (people's court)
Procuratorial power (People’s Procuratorate)
feature
Subjects are specific and exclusive: People’s Courts and People’s Procuratorates
Content has a specific meaning
The process is strictly procedural
The referee is authoritative
in principle
Judicial equality (compliance, protection, sanction)
Rule of law (based on facts and law)
Facts: "Legal facts" determined by judicial organs through specific legal procedures with the goal of discovering objective facts.
independent exercise of judicial power
·Accept the leadership and supervision of the party (political guarantee) ·Accept supervision by state power agencies ·Supervision and restraint between superiors and subordinates within the judicial organs ·Accept supervision from public institutions, social groups, legal professional communities, democratic parties, the people, and public opinion
Judicial responsibility
"State Compensation Law", "Judges Law", "Prosecutors Law"
legal reasoning
form
[Statutory Law] Deduction: Inevitability
concept
Determine whether a specific fact meets the requirements of legal norms, thereby determining the relationship between rights and obligations and clarifying the legal responsibilities.
A thinking process that places specific facts (S) under the requirements of legal norms (T) to arrive at a certain conclusion (R). T→R (T requirements are met, and the effect of R’s law is applicable) S=T (the facts of the specific case meet the requirements of T) S→R (Applying T to the facts of a specific case results in the effect of the law R)
T can be found
T cannot be found
·Ignorance of facts ·Uncertainty about goals
You can find similar ones
A legal gap has arisen
vague
Two or more contradict each other and contradict each other
step
Identify an authoritative major premise → clearly state a true minor premise → derive a reliable conclusion (To determine the relevance of major and minor premises and facts)
[Case Law] Analogical (inductive, statistical, retrospective) reasoning: probability (True premises do not necessarily lead to true conclusions)
Backtracking: backtracking
Search for precedents → Discover the factual similarities and differences between the cases → Judge the importance of the similarities and differences
A has attributes a1, a2, a3, a4..., b B has attributes a1, a2, a3, a4...,an →B also has attribute b
value
Reasoning and the Rule of Law
logic and experience
3 aspects
Use reasoning to provide legitimate reasons for judicial decisions based on the two known judgments of confirmed specific case facts and cited legal norms.
Legal Normative Reasoning
factual reasoning
Judicial decision reasoning
abide by the law
Components
Subject: all organizations and individuals (human and territorial)
Scope: Statutory laws, non-normative legal documents (judgments, mediation documents, rulings, etc.)
content
exercise legal rights
fulfill legal obligations
Positive (should...)
Negative (must not...)
Law-abiding conditions
good quality law
Good legal awareness
Good legal environment
good social environment
supervise
concept
All state agencies, social organizations and citizens supervise the legality of various legal activities
Components
Subjects: state agencies, social organizations and citizens
object
Content: Legality of behavior
Classification
state and society
Internal and inter-system
Before, during (daily), after (prevention, control, correction)
system
state supervision
state authority
Supervision of constitutionality and legality
Objects and scope of supervision by the National People’s Congress: ①Supplements to the basic laws made during the period when the National People’s Congress is not in session ② Other laws other than the basic laws enacted and revised by the Standing Committee of the National People's Congress ③Have the right to revoke inappropriate laws enacted by the Standing Committee of the National People’s Congress and autonomous regulations approved by the Standing Committee of the National People’s Congress that violate the provisions of the Constitution and the Legislative Law on flexibility restrictions.
The objects and scope of supervision by the National People’s Congress Standing Committee: ①Administrative regulations formulated by the State Council ② Treaties and agreements concluded with foreign countries ③Local regulations ④Autonomy regulations ⑤ Authorizing legislation ⑥Legislation of the Special Administrative Region Legislature
The objects and scope of supervision by local people’s congresses and standing committees ① The people's congresses of provinces, autonomous regions, and municipalities directly under the Central Government have the power to change or revoke inappropriate local regulations formulated and approved by their standing committees ②The standing committee of the local people's congress has the power to revoke inappropriate regulations formulated by the people's government at the same level
work supervision
Supervision by state administrative agencies
General administrative supervision: administrative legislative supervision, daily administrative work supervision
Specialized administrative supervision: administrative supervision (supervision of law enforcement by state administrative agencies and their staff), administrative reconsideration supervision (examination and supervision of the legality and rationality of specific administrative actions at the request of the administrative counterpart), audit supervision
National judicial supervision
Procuratorate: People's Procuratorate
Legal and disciplinary supervision: dereliction of duty and violation of civil rights
Economic supervision: taking advantage of position to engage in economic crimes
Investigation supervision: the legality of criminal investigation activities of public security organs
Trial supervision: the legality of trials by judicial organs
Supervision of prisons and reform-through-labor: criminal case rulings, execution of rulings, legality of activities of prisons, detention centers, and reform-through-labor institutions
Judgment organ: People’s Court
Administrative litigation: supervision of administrative agencies
Supervision of judicial activities: superiors to subordinates, the president and the judge located in Anu will meet with the court
Supervision of the Procuratorate
Supervision by state supervisory agencies
Prosecute public officials: official violations and official crimes, and carry out clean government construction and anti-corruption work
Social supervision (Does not have direct legal effect and is mandatory)
Supervision by the ruling party
Supervision by other social organizations
CPPCC: supervise legislation, participate in consultations and discussions on major decisions and important laws, and supervise the implementation of laws through inspections and investigations.
Democratic Party
Trade unions, Communist Youth League, Women’s Federation and other social groups
Supervision by public opinion (enjoying certain limits)
Supervision by the people
Realization of law and legal order
accomplish
concept
Through the process of law enforcement, judiciary, law-abiding and legal supervision, the rights and obligations set by legal norms are realized and the results are suitable for the purpose.
stage
① Legal regulations are determined
②Legal facts appear
③Formation of legal relationship
④Realization of legal rights and obligations
Classification
Realization of legal norms: microscopic and specific norms
Internal factors
Whether it conforms to objective laws
Is the purpose clear and reasonable?
Is it operable?
Judges, law enforcement officials
Interest relations in legal adjustment
external factors
Economy (market economy)
Politics (democracy)
culture and science
Implementation of departmental laws
Realization of the legal system: Macroscopic and legal order formation
order
concept
An orderly state of social relations established through the implementation of legal norms and laws
form
Constructivism
Advocates that reasonable legal norms, systems and orders are designed by people according to clear purposes
evolutionism
The knowledge required for the operation of the legal order is dispersed among the "practical knowledge" of each individual's experience
as an obligation (positive obligation)
By providing an incentive mechanism to induce the parties to take "optimal action"
Directly stipulated by law
Position and career requirements
Under certain circumstances, public order and social ethics require the performance of
caused by antecedent behavior
propositional logic predicate logic normative logic
effective inference rules