In legal theory, legal principles are a type of legal norms; in legal practice, the legitimacy of legal principles being cited as valid legal norms is often questioned. The awkward position of legal principles in jurisprudence shows that the issue of whether legal principles can be directly applied in individual cases has not been completely resolved and is still worthy of further discussion. The author will use four cases as an entry point to explore the confusion and thinking caused by the application of legal principles to individual cases.
1. Confusion and reflections caused by individual cases
(1) In the absence of clear provisions in the law, whether the court can accept the case and accept the case based on basic legal principles and the inherent spirit of the law. Make a ruling?
The case of "Injury to the right to kiss": Tao was hit by Wu's car. The car accident caused Tao's upper lip laceration and other injuries, constituting a tenth-level disability. Tao believed that due to the flaky scar remaining on her upper lip, she would feel pain every time she kissed her husband, causing a psychological disorder. Tao sued the court for compensation. The court held that the right to kiss was unfounded in law, and it did not support Tao’s request for compensation for mental damage because he could not kiss. Wu violated Tao’s physical and health rights and should pay 500 yuan in compensation for mental damage. .
The case of "infringement of sexual rights": Xu, a driver from a certain sanitation station, hit and injured Zhang who was helping to close the door behind the truck while reversing his car during working hours. The forensic identification result was: due to trauma. Causes erectile dysfunction. Zhang's wife Wang believes that her husband's loss of sexual function due to the car accident has seriously damaged her physical and mental health. The couple sued the Environmental Sanitation Office as the defendant, demanding compensation of 150,000 yuan for various losses, including compensation for mental losses due to damage to their sexual rights. The court held that sexual rights are an aspect of citizens’ right to health. Wang’s sexual rights as his wife were infringed. The court ruled that the Environmental Sanitation Office should compensate Zhang for more than 100,000 yuan in medical expenses, disability living allowances, disability compensation and other losses, and Wang should be compensated. A certain person received a consolation payment of RMB 10,000 for mental damage.
In the two cases, the claim in the former case was not supported by the judge because the judge believed that the "right to kiss" was a presumptive right, while the claim in the latter case was supported by the judge because the judge believed that "the right to kiss" was a presumptive right. "Sexual rights" are an aspect of citizens' health rights and a legal right. In fact, sexual rights are obviously a right that is not clearly stipulated in China's civil laws. The court not only accepts the claims arising from it, but also makes compensation claims in favor of the plaintiff. No matter how the judge who tried the case explained it, the basis of his ruling was obviously not derived from the clear provisions of the law, but the basic principles and inherent spirit of the law. And the right to kiss is also a right that is not clearly provided for by the law. The right to kiss is not supported by the law.
(2) When there are only legal principles but no legal rules, can the court directly cite this principle to adjudicate the case?
Case of violation of "loyalty agreement": Zeng and Jia signed a "loyalty agreement" when registering their marriage. The agreement stipulated that the couple should respect and love each other after marriage, and treat their family, spouse, and children You must have a sense of morality and responsibility. The agreement also stipulates "liability for breach of contract": if one party betrays the other party due to moral issues during the marriage, he must compensate the other party for reputational damage and mental loss of 300,000 yuan. . Soon after the marriage, Jia discovered that her husband not only continued to associate with his ex-wife, but also had affairs with other women, so he filed for divorce and requested compensation. The court found that the "loyalty agreement" was valid and ordered Zeng to pay the plaintiff 300,000 yuan in liquidated damages.
(3) When the law has clear provisions, can the court make a ruling based on legal principles instead of clear provisions of the law?
“Third Party” Bequest Case: Married Huang and Zhang publicly rented a house and lived together as husband and wife. Later, Huang was diagnosed with late-stage liver cancer. During hospitalization, Zhang accompanied Huang at his house. In front of the hospital bed. Huang made a notarized will and donated to Zhang his housing subsidy, provident fund, pension and half of the selling price of the original house after his death. After Huang's death, his legal wife Jiang refused to execute the will, so Zhang sued the court and asked the court to rule on Jiang's execution of the will in accordance with the law.
The court of first instance declared the bequest agreement invalid because it violated "social morality" and rejected the plaintiff's claim. The court of second instance held that although the will was legal in form, its content violated the law and social welfare interests; in addition, the inheritance rights between husband and wife were a concrete manifestation of the validity of marriage. Jiang should have enjoyed the inheritance rights, and Huang transferred the property to The bequest to Zhang essentially deprived Jiang of his legal inheritance rights, violated the law, and should be invalid, so the appeal was dismissed.