"Reference" means "reference and imitation"; refer to applicable as a legislative technology，The legislators are widely used for the formulation of empirical legal norms。Refer to the applicable clauses often use "accurate", "reference" and "reference to applicable" as the logo，Legal basis based on the principle of equality，Authorized referees refer to other matters that are applicable to the existing laws and regulations.，To reflect the norms similar to similar cases，Therefore, it is also known as "authorized class push" or "legal category push"。According to statistics，In the "Civil Code", there are 28 use of this legislative technology。Beyond the Civil Code，Other laws and judicial interpretations are increasingly used for applicable specifications。For example，"Provisions on the Supreme People's Court on Several Issues of the Council of the Periodical Council" (hereinafter referred to as the "Regulations on Administrative Agreement")，The Court of Court of People's Court hearing the CPPCC Case，You can refer to the relevant regulations on civil law specifications on civil contracts。Reference application is not only a legislative technology compiled by law，It is also a judicial technology applicable to law。Correct understanding and using such terms，The scope of applicable to broaden the existing standard、Enhance the certainty of the referee result、The system efficiency of the release of the "Civil Code" is important。

　bet365 best casino games

Refer to the applicable object is usually the legal effect of reference to the specifications，In individual circumstances, it can also be the constituent elements of the above specifications，For example, Article 311, Paragraph 3 of the Civil Code of the Civil Code，The reference object includes the constituent elements obtained by goodwill。References in a broad sense include three categories: standard category reference、Case Class Reference、Specification Class Reference。"Standard Class Reference" is mainly price、Interest rate、Demonstration text and other matters for reference，It is generally used to determine the specific value of the disputed target，For example, Article 410, Paragraph 3 of the Civil Code，You can refer to the market price to determine the discount or selling amount of the guarantee。"Case Class Reference" refers to the reference for guiding cases issued by the Supreme People's Court，Its specifications are based on the "Provisions of the Supreme People's Court on the Guidance of Case Guidance"。"References to the specifications", also known as narrow reference applications，It is to deal with the existing legal norms to compare the decision -making case，Its essence is the quotation of legal norms。For example, the "Explanation of the Supreme People's Court on the Sales System Bet365 lotto review of the People's Republic of China" (hereinafter referred to as the "Interpretation of the Civil Code Guarantee System")，Courts at all levels can refer to the explanation of the relevant rules of the company's external guarantee to determine the effectiveness of the company's debt，is a typical "specification class reference"。The target of this clause is the effective rule of the company's external guarantee，It aims to make up for the lack of corporate debt to join the rules of behavior.，So provides direction guidance for the legal interpretation and legal application of the decision -making case。Guidance case、Market price、References of Demonstration Text，Due to the fact that the legal facts are only related to the legal facts, the value judgment is not involved，No institutional function that does not have guidelines and specifications，Therefore, it does not belong to the category of narrow "reference to applicable"。

Although the academic community has the point of view: Referring to the essence of applicable is a legislative class push，The title of "French Category Push" also reflects this view。But this article thinks，Refer to the application as a legal explanation method，Different from the class that is used as a method of filling the method of legal vulnerabilities。On the one hand，Refer to the application of applicable to the class with similar institutional functions，When the specification supply is insufficient，Both can provide standardized support for the decision -making case，Fill the vacancies of the empirical law specifications。On the other hand，Refer to the applicable clause is the "intentional arrangement" made by the legislators beforehand，The existence of such clauses，Matters that have not been regulated by the empirical law no longer belong to the situation that the legislators should foresee but fail to foresee "，The possible legal vulnerabilities have been made up in advance。Refer to the applicable terms can be with the reference method，The "Big Premature" as a referee to be resolved，Referring to the application of judicial technology is only a legal explanation method。

　Clearly distinguish the legal type of the applicable clause

According to different judgment standards，The applicable clauses in the Civil Code can be typed type，Different types of reference to applicable clauses correspond to different reference methods。

First，References in the domain and reference outside the territory。Different from the regulations where the participation specifications are located，The applicable terms in the "Civil Code" can。If it is attracted to civil law specifications，is reference in the domain; if it is attracted to the administrative law、Company Law、Securities Law and other non -civil law specifications，It belongs to the reference outside the territory。Most of the reference applicable terms are references in the domain，Most of the "Civil Code" of the same chapter、Reference in the same editor，Most of the minorities are mutually cited among the bet365 live casino games editors of the Civil Code。For example, Article 642 of the Civil Code is located in the contract editor，Paragraph 2 of this article stipulate，You can refer to the implementation procedure of the applicable guarantee property right，It will be cited to the relevant provisions of the property edit of the "Civil Code"，Create a communication bridge of property rights and contract compilation，Enhanced the systemicity of the Civil Code。The essence of the reference clause outside the territory is the "referral clause"，It introduced the standardized resources outside the civil law into the judicial judgment of civil cases，Expansion of the source of the law of civil law。As stipulated in Article 71 of the Civil Code，Questions on the liquidation procedures and liquidation group of legal person，When there are no relevant laws and regulations，Refer to the relevant regulations of the company's laws。

Second，Specific reference and general reference。Is it a single specific specification or a specification group according to the guidance specification，Refer to the applicable clauses can be divided into specific citations and summarizes citations。The former authorized the referee to refer to the applicable specific terms，For example, Article 174, paragraph 2，The method is clearly coded by the quotation.。Under the specific quotation terms，Fix the scope of the guidance specification、Clear，Therefore, you don't need to "find the law" and can directly participate，The judge does not have to demonstrate the specific reason for the citation，Because the reason has been preset by the legislators and contained in the applicable terms。The summary of the cited clauses just depicts the scope of the coded specifications，Before the referee is determined to be the "big premise" of the resolution of the cited basis，"Screening" from it according to the specific situation of the case shall be "screened" for codes that can be cited、Exclude the specifications that are not cited。For example, Article 1023, Paragraph 2 of the Civil Code，"Protection of Natural Man's Voice，Refer to the relevant provisions of the protection of portrait rights "。This entry is a general ginseng clause，Only authorized referees can find the standard resources of natural person's voice protection from the regulations of portrait rights protection，But it is not clear which one can be accused，Which should not be accused。For this，The referee needs to screen the difference between the sound and interest between the sound and the right of portrait，Therefore, the specific specifications that are finalized and the nature of the specification objects are consistent。

　Deeply understand the institutional function of referring to the applicable terms

First，Streamlined legal provisions，Avoid repeated regulations。Refer to the applicable terms as reference specifications，is a kind of incomplete law，You can use the reference to the application of the similar parts of the similar parts of the different systems in the codes，Streamlined provisions specifications，bet365 live casino games Avoid repeating and tedious legal norms。

Second，Applicable to expansion specifications，Expansion normative capacity。Refer to the applicable clause can be with the referral terms，Applicable scope of expansion specifications，Expansion of the standard capacity of the gesture of the gesture。Taking Article 464 of the Civil Code as an example，This authorized referee approved the provisions of the "Civil Code" contract for marriage、Monitoring、Adoption and other identity relationship agreement disputes，Expansion of the scope of application of the contract specification，At the same time, the standard capacity of the marriage and family editing is expanded，Make the contract specifications into a potential specification resource that can be suitable for marriage and family disputes，The system effect of the "Civil Code" is exerted。

third，Promote the unity of norms，Release system performance。The systemicity of civil law requires that the standard systems should form an organic unified overall in accordance with the logic of civil law itself，Refer to the applicable terms greatly enhanced the system and scientificity of the Civil Code。It is because of the existence of the applicable clause，Make the internal specifications of the Civil Code、Standards for each editor、The connection between the "Civil Code" and the special law specifications is more closely，Make up for the lack of general legislative technology of "extraction of public factor"，Effectively reduced applicable conflicts between different specifications，The system efficiency of the Civil Code is released。

　Accurately grasp the applicable method of referring to the applicable terms

First，Refer to the applicable subject range。There is controversy on this problem，And this article thinks，Only referees have the right to refer to applications，The parties to be resolved have no right to take the initiative to quote。There are two reasons: First of all，In terms of nature，Referring to the applicable terms carrying the authorization of the legislators to the referee，It is not authorized to be authorized; followed by，Refer to the applicable clause is incomplete law，It only provides the object of being attracted，It does not give a clear legal effect，How to apply depends on the free tailoring of the referee，Can't provide a clear guidance for the parties with a clear behavioral specification。If the parties are allowed to quote the applicable clause，It will definitely interpret the applicable clause from its own interests，thus affecting the certainty and expected of the results of the referee。

Second，Refer to the applicable normative nature。The nature of the applicable clause is compulsory or arbitrary，Legislators are not explained，Different opinions exist in the academic community。"Civil Code" 28 reference clauses only show "reference"，The remaining 25 but not used by modal words to be limited。I think，Regardless of whether the expression of the law is "reference to applicable" or the "reference application"bet365 Play online games ，The compulsory obligation set by the legislators to the referee is determined。First，Can't just determine the nature of the law with the modular words，"Yes" sometimes reflects the compulsory of the legislators。For example, although Article 10 of the Civil Code uses "OK" expression (... the law does not specify，It can apply habits)，But according to the source of the law，The incompleteness to supplement the law with the practice of the law is the legal obligation of the referee。If this article is used as an arbitrary specification，It will cause many referees to abandon their customs and quote other sources to resolve civil disputes，This causes the chaos of judicial referee。Next，If you do not consider the compulsory obligations of referees as referees，The same case will be applicable for reference、Class push for、The disorderly situation of coexistence of different referees such as applicable habit，Positions that do not meet the legislators who actively provide a method guidance for the judicial referee to be determined，to reduce the applicable institutional function。

third，Refer to the applicable order。When the lack of legal provisions，Material method、Reference to applicable、What are the applicable order for the class，Legal and judicial interpretation has no provisions。I think，Refer to the applicable terms should have a priority position。First，Refer to the application should be given priority to the class。Refer to the application of the legislators intentionally applied to the legal specifications to be cited for resolution，The setting of such clauses fully reflects the rational arrangement of the legislators，and refer to the applicable certainty and stability than the class push for。Refer to the applicable clause as a method of legal interpretation，Applicable to the class as a method of filling the method of vulnerability，It is the stability and expected meaning of the application of the law。Next，Refer to the application should be given priority to the customary method。Refer to the application of the legislators' pre -arrangement，Refer to the applicable terms and the specifications of the cited formation constitute a "big premise" suitable for the decision type，The situation of the legal existing law，Therefore, it does not constitute the prerequisite for the practice law of Article 10 of the Civil Code "Law without provisions"。Only in the norm without a clear actual evidence，No reference to the applicable terms can be cited，Only having a customary method、Class Two -applicable space。

Fourth，Selected criteria for coding specifications。In the exact quotation，Due to the reference clause, it has indicated the attracted object，The referees should directly quote the relevant specifications。But in the general ginseng，The referee needs to screen out the codes that can be cited from the specification group pointed by the applicable clause。This screening process is related to the properness of the accuracy results，The core is that the facts of the decision -making and the many norms in the specifications Bet365 app download of the quotation specifications are "similarity judgment" in the facts constituent。If the similarity of the two is greater than the difference，can be applied by reference; if the difference between the two is greater than similarity，If you cannot refer to application。How to judge the "similarity" at this time、"Similarity" and "Difference" how to compare，On the one hand, it depends on the judge’s free tailoring，On the other hand, it is also subject to the existing system interpretation of the formulation method。Article 12 of the "Interpretation of the Guarantee System of the Civil Code" as an example，This provision authorizes the referee when determining the effectiveness of the company's debt to join，You can refer to this explanation of the relevant rules of the company's external guarantee。It is both an authorization of the referee's useful behavior，It is also a setting of the referee's obligation，That is, the referee must apply this Article specification，Processing the company's debt to join the effectiveness of the company。But this provision only provides a specification group that can be selected and cited- "Interpretation of the Civil Code Guarantee System" Article 7-11，Which of these specifications can be cited、Which can not be cited，It is necessary to screen "similarity judgment"。I think，Company debt joining and the company's external guarantee in the subordinate attribute、Single personality has similarity，And both have motivations for the company to seek benefits，and the consequences of the responsibility of the company's property may occur。Based on these similar features，You can screen out the relevant specifications from the above specifications。In addition，It is also necessary to pass the "Different Judgment" to exclude the specifications with large differences in the specification group and to be resolved.。For example, for financial institutions and guarantee institutions，The company's external guarantee belongs to its business scope，And debt joining is not its daily business matters，Therefore, Article 8, paragraph 1, paragraph 1 (1)、Article 11 (11), paragraph 2-3 involving financial institutions、Guarantee agencies do not require the regulations of the company's resolution，It should be excluded beyond the addition of corporate debt。

Fifth，The referee's obligation。The judicial three paragraphs corresponding to the general legal interpretation method have a mature referee reasoning mode，But refer to the corresponding case referee that the theoretical processes are more chaotic，In a sense, it has become theoretical and practical blind spots。The main reason is，Referees often do not realize that they should bear the obligation to be higher than the general legal interpretation。Similar to pushing with a class，Cases of civil difficulties involving interests involving interests and judgment of value，Strict logic、A convincing saying that the theory is a necessary condition for a qualified bet365 live casino games judgment。Especially in the general citation，The argumentation obligation of the referee must be higher than the specific quotation。When the referee chose a certain legal specification as a coded clause，Must explain the question of "why reference" and "how to refer to"，The nature of the facts to be resolved must be revealed，Comparison of "similarity" and "difference"，This is used to syndize the applicable legitimacy。Only clarify the process of the conclusion of the referee and its legitimate reason，Clept the factors considered by the free tailoring and analyze the strength of its argument，Refer to the applicable referee to be fully the same、thorough，to get the corresponding explanation、persuasiveness and credibility。Article 27, paragraph 2 of the Administrative Agreement Regulations as an example，Administrative Agreement has both administrative and symbolic aspects，Administrative nature more reflects the privileges and unilateral compulsory of the administrative organs，It is the difference between the differences with the civil contract;。When the referee is allowed to handle the specific administrative agreement dispute in accordance with this clause,，Talking about the theory of similarity characteristics of the two should be strengthened，To reflect the necessity and legitimacy of the accurate behavior。

(Author Unit: School of Law of Qingdao University)