Scholar Ren pointed out: "Legal discovery can be used for both legislation and judicature" {1}. Mr. Zheng summarized in detail the different meanings of legal discovery in previous legal understanding: first, the way of law generation; The second is the acquisition of law, that is, where the judge can find the legal source and legal norms suitable for the case; Third, it is a kind of law application activity which is essentially different from law application; Fourth, there is no essential difference between legal application and legal application {2}. There is no doubt that these four meanings are also used in both legislative and judicial aspects. What I want to emphasize is that this paper discusses the legal discovery based on the judicial environment, and does not involve the legal discovery in legislation.

In the judicial environment, the concepts similar to legal discovery include legal "identification" and "discovery of law". Chen, a famous scholar who advocates "legal discovery", pointed out in his thesis "Legal discovery in the judicial process": "Legal discovery is a term commonly used by European and American jurists, which refers to a method used to discover and solve specific problems or determine the meaning of legal principles and rules related to cases in a specific system, so legal discovery is sometimes called legal method." {3} Obviously, Mr. Chen defines legal discovery as a legal method, which refers to the method used to discover and solve specific problems under a specific system; Or in a specific system, the method used to determine the meaning of legal principles and rules related to cases on specific issues. The Oxford Companion to Law, written by the British scholar David M.Walker, has no special entry and definition about "legal discovery". In this dictionary, there is a concept similar to that expressed by teacher Chen. This concept is "methodology" (law), and its definition is: "The sum of methodological knowledge that can be used to discover principles and rules related to solving specific problems or disputes in a specific legal system." {4} The Zhao Yuan Dictionary of Anglo-American Law, edited by China scholar Xue Bo, does not include the word "legal discovery", but it contains a concept related to legal discovery-legal methodology, which is defined as: "It refers to the knowledge system used to explore relevant principles and rules for solving specific problems or disputes under a specific legal system or regulations." {5} At this point, combined with relevant expressions, it can be considered that in the European and American legal circles, legal discovery refers to the method of discovering and determining the legal principles and rules related to pending cases. In short, legal discovery refers to the method of determining the legal basis of judgment.

Mr. Hu Yuhong, a famous scholar, and many domestic scholars use the word "appraisal" to indicate the activities of determining the legal basis of the judgment. They think that legal identification is an activity; Identification technology refers to various special methods or reasonable ways for identification. That is to say, in a specific legal system or legal system, the activity of digging and looking for legal principles and rules that can be used as the basis of judgment is called legal identification; Various special methods or paths can be called legal identification technology {6}.

Liang Huixing, a famous scholar, used the word "discovering the law" to describe the activities of determining the legal basis of the judgment. He said: "In the daily trial of a case, every comrade of ours immediately moved out of the trial manual prepared by the Supreme Court after finding out the facts of the case ..... Why? Is to find out which one should be applied in this situation. By consulting the trial manual and the encyclopedia of laws and regulations, we can know whether there are any provisions in the law about this case and what provisions in the law are applicable to the judgment of this case. This kind of activity is represented by a very vivid word in legal hermeneutics, which is called' discovering the law'. Its meaning is to find a legal provision from the existing law to judge the current case. " The word "finding the law" is very vivid, that is, finding the legal rules that can be used to judge a case from the existing legal rules, that is, the premise for logical reasoning. This job is called finding a way. ”{7}

The author believes that to fully understand and accurately define the concept of "legal discovery", we must first understand the basic mode of judicial adjudication (the administrative application is similar). There are many views on the mode of judicial adjudication in academic circles. The author thinks that syllogism deductive reasoning is undoubtedly the basic mode and the main mode. Whether in civil law system or common law system, judicial decisions are ultimately based on the combination of case facts and legal rules. Therefore, the author believes that the basic mode of judicial adjudication can be expressed as:

(1) Major premise: universal normative judgment, that is, a legal norm (= constituting fact+legal effect).

In terms of "clarity", the constituent elements of legal norms stipulate abstract factual elements, such as behaviors and events. But it inevitably "implies" the value element, that is, the value judgment of legislators. The legal effect in legal norms is an abstract provision of general rights, obligations and responsibilities in terms of "clarity", but it also "implies" value judgment.

(2) Minor premise: judge the specific facts of evidence-life facts-legal facts (parties to the case)

(3) Conclusion: The specific judgment/handling conclusion formed by the specific normative judgment (after (1)→(2)→(3)).

The derivation process is divided into three steps: (1) the judge judges whether the legal facts between the parties to the case conform to the constitutive facts stipulated by the legal norms. This "conformity" can not be separated from the judge's fact judgment and value judgment: on the one hand, it is necessary to judge whether the facts of the case can be classified as the constituent facts mentioned in the legal norms; On the other hand, it is necessary to judge whether the value of this case is the same as the legislative value embodied in the legal norms. (2) If the facts of the case can be classified as the constituent elements of legal norms, and both of them have the same value, then the judge will put the legal effect of legal norms into practice. This work is not a simple right, obligation and responsibility, but also a judge's value judgment activity. (3) The judge makes a judgment and ruling on the current case through value judgment.

Obviously, when applying the above laws, it is important to determine the legal norms as the major premise; It is also important to determine the legal facts in a case or event according to evidence and legal investigation; It is equally important to creatively and actively combine the major premise with the minor premise and draw the judgment conclusion. However, among them, there is always a problem, that is, to find and determine the most suitable legal basis for this case. However, it is not enough to find some articles in a complete set of laws and regulations to find a legal basis. If you can't find the law, can't you solve the case? Is it necessary to find legal provisions to solve crimes? Is the application result of the provisions applicable to this case fair and just? Therefore, the word "discovery law" is used to express legal discovery, although it is vivid, but it is not standardized and rigorous. Taking legal provisions as big warehouse and subjects suitable for law as mechanical indexers cannot fully reveal the connotation of legal discovery. The author thinks:

Legal discovery refers to the activities that judges generate judgment norms when judging cases.

This definition is explained as follows:

First, legal discovery exists in the application of law. Different types of legal application and different subject identities can further evolve some new definitions. For example, in administrative law enforcement, legal discovery refers to the activities of administrative organs and their staff to generate basis for handling administrative events.

Second, legal discovery is to find and determine the legal norms that are most suitable for the judgment of this case. The word "Dai" was inspired by Professor Zhou Yongkun {8}. Professor Zhou mainly uses "generation" to express legislation and legal creation, and the author uses "generation" to refer to a series of activities to find and determine the basis of judgment in the application of law. Whether legal norms can be found, whether legal norms are clear and whether legal norms are applicable are all very important contents, especially whether legal norms are applicable, which is a legal point that needs special attention in legal discovery.

Third, legal discovery is a dynamic and creative activity, not a simple index. First of all, legal discovery is an activity, including search, selection, supplement, explanation, determination and so on. All activities related to the establishment of the premise of the referee can be attributed to legal discovery. Secondly, legal discovery is a dynamic creative activity. Mr. Chen pointed out: "The combination of * * laws and cases requires the initiative and initiative of judges. Without the careful thinking of judges, it is impossible for laws that embody the nature of things to automatically combine with cases. When handling a case, a judge must make a legal discovery of the case on the basis of clarifying the facts. Even if it is a simple departmental regulation, it is actually a process of legal discovery. " {9}

The author believes that legal discovery can be defined as a method, a legal method in the context of legal application and even legal implementation. But as far as micro-practice is concerned, since it also has some methods, it should not be defined as methods, but as activities. In fact, the premise of finding and determining the referee is indeed the litigation behavior that the judge should carry out in the judicial process, and it is a litigation activity. In basic semantics, "activity" refers to actions taken to achieve a certain purpose; "Method" refers to technology, method and action sequence. Although the two are closely related, the difference exists objectively. Therefore, the author thinks that this definition is not rigorous: "Legal discovery in judicature refers to the activities and methods adopted by judges to discover legal principles and rules in order to solve specific cases." {10} On the one hand, activities and methods of activities are not on a logical level; On the other hand, legal discovery is not limited to the discovery of legal principles and rules. Although legal principles and rules are the main goals of legal discovery, informal sources of law are also the objects of legal discovery in the absence of explicit provisions in law, and informal sources of law can also be used as the basis for judgment.

Second, the method of legal discovery For legal discovery, the simplest method is legal index and literal interpretation. However, it is more important to embody the initiative and creativity of legal discovery. They are relatively applicable methods, conflict resolution methods, legal interpretation methods, loophole filling methods and interest measurement methods, which are described respectively.

(1) comparison method The comparison here is different from the comparison in the comparison method. It only refers to the horizontal or historical comparison and reference between legal texts or legal provisions in the statutory law system. Through this comparison, the judge can establish a legal rule, which can be used as the basis for judging the case. The more applicable method, in the application of law, is the formal reference of texts or provisions based on the existence of more than two objects; A little more complicated is analogy application, which is based on only one object, and the specification expressed by this object should be applied to other similar objects. The comparison and reference of legal texts or legal clauses is common and important for legal discovery. Through comparison, reference and identification, the correct conclusion is drawn. For example, regarding the scope of accepting cases in administrative litigation, we can compare the Administrative Litigation Law and the Administrative Reconsideration Law, and compare Articles 1 1 2 of the Administrative Litigation Law and Articles 5 and 6 of the Administrative Reconsideration Law. By comparison, we will find that the Administrative Reconsideration Law has expanded the scope of accepting cases stipulated in the Administrative Procedure Law. When the people's court examines the plaintiff's lawsuit and makes a ruling on whether to accept it or not, it should rely on the administrative reconsideration law instead of the administrative litigation law. If there is no such comparison, there may be mistakes in solving the case.

In the process of law application, as far as legal discovery is concerned, analogy is the most worthy of attention among the more applicable methods. Kaufman, a famous scholar, once said: "The legal method must be carefully understood. The core of the legal method is not logical reasoning, but comparison-probably in a case comparison, it is impossible without norms, rules and comparison points." {1 1} Analogy is a comparison, which refers to the application of legal provisions to similar matters beyond its scope of application. Karl Larenz pointed out that "analogy application refers to transferring the rules given by the law to a certain constituent element (a) or most similar constituent elements to the constituent element (b) which is not stipulated by the law but similar to the aforementioned constituent elements. The basis of the transformation is that these two elements-in important points related to legal evaluation-are similar, so they should be evaluated equally. In other words, it is based on the requirements of justice-similar things should be treated equally. " {12} It can be seen that this analogy is to apply legal norms with different facts to similar facts without legal provisions. That is to say, when the case lacks legal norms that can be used as the basis for judgment, we can find and refer to other legal provisions that adjust similar problems by analogy as the basis for judgment of this case.

The application of analogy is based on the principle of equality and is widely adopted by courts. Its basic principle is the legal principle of "similar cases should be treated equally" {13}. However, according to the requirements of the rule of law, we should pay attention to the following issues when applying the law by analogy {14}:

First, analogy judgment is allowed only when there is no legal norm or the legal norm is incomplete.

Second, analogy analysis is similar to the situation stipulated in the existing norms, and it should be a specific similarity with the same legal significance.

Third, if the law explicitly prohibits or the law links the occurrence of legal consequences with specific norms, it is not allowed to draw conclusions by analogy.

Fourth, the special norms and exceptions in the universal legal rules can only be applied when the circumstances of the trial are also very special.

Fifth, analogy judgment should be based on finding the norm of a certain legal department first, and other departments or the whole legislation can be used without this norm.

In judicial practice, the most difficult and controversial question is: "How to identify the types of pending cases and the types of cases expressly stipulated by law with the same legal significance?" This is how {15} judges the similarity. In this regard, German scholar Larenz has a wonderful expression {16}:

The facts of these two cases are "similar" to each other, which means that they are consistent in some points, while others are not. If they are consistent at all possible angles, then they are simply "the same". The facts of related cases can neither be the same nor absolutely different, but they must overlap with each other in important viewpoints related to legal evaluation. Whether this is the case can not be determined only by the basic logical categories such as "consistency" and "inconsistency", but must first be clarified: What is the decisive point of evaluation expressed by legal rules? Then it is affirmed that: in all these viewpoints, the facts of pending cases conform to the facts stipulated by law; Then it is negatively determined that the difference between the two is not enough to rule out such legal evaluation. Therefore, the application of analogy in law is an evaluative thinking process, not just a formal logical thinking operation. Among the statutory elements, which elements are important for statutory evaluation and why? To answer these questions, we must return to the purpose and basic idea of law, in short, discuss it from the legal reasons.

(II) Ways of Conflict Resolution Legal conflicts in a broad sense include positive conflicts and negative conflicts. The so-called negative conflict means that there is no legal provision for the same matter and no one to regulate it; Active conflict refers to the existence of two or more legal provisions on the same matter, but they conflict with each other, and there are "conflicts" or "inconsistencies". Negative conflicts are actually legal loopholes, so I won't elaborate here. The conflict of laws to be discussed now only refers to the positive conflict of laws. In China, legal conflicts are mainly manifested in the conflicts between laws, administrative regulations and laws, local regulations (including autonomous regulations and separate regulations) and laws or administrative regulations, and local regulations and departmental regulations {17}. The reasons for these legal conflicts are as follows: first, the diversity of legislative subjects and the unclear legislative authority are the reasons for the legislative system; Second, the diversification of economic interests and local and departmental protectionism serve local and local self-interest are the economic roots of legal conflicts; Thirdly, the contradiction between the old and new laws arises in the process of the transformation of the old and new systems, which is the social cause of legal conflict; Fourth, people's different understanding of things is the epistemological root of conflict {18}.

Conflicts must be resolved, otherwise the unity of the legal system will be destroyed, and judges will be at a loss as to the basis of judgment. For the settlement of legal conflicts, some scholars put forward "comprehensive treatment of conflict prevention, conflict elimination and conflict adjudication" {19}. Preventing conflicts of laws can be said to be an ex ante measure, which mainly includes the clear definition of legislative power, the examination and approval of lower-level laws, the filing and examination, the cleaning of laws and regulations and the compilation of codes. Obviously, this is an internal problem of the legislative system and has little to do with the theme described in this paper. The adjudication of conflict of laws includes the legislative supervision and revocation mechanism of specialized organs within the constitutional framework, as well as the adjudication mechanism of superior competent organs of the reciprocal law. Strictly speaking, it is also not closely related to the application of law. Within the scope of the theme described in this paper, it is necessary to focus on ways to eliminate legal conflicts. The so-called exclusion of legal conflicts refers to the establishment of a set of rules to solve legal conflicts, so that the applicable organs of the law can automatically choose the applicable law when they encounter legal conflicts and eliminate conflicts. The construction of this set of rules system avoids the request of judicial law enforcement organs at all levels when they encounter legal conflicts, thus greatly improving the efficiency of applying laws. So, how to build this rule system? Chapter V "Application and Filing" of the Legislative Law has made legislative arrangements for this, and the author summarizes its central principle as two sentences:

First, the main line of conflict resolution (identification) of different laws is the legislative system, legislative subject and authority.

Secondly, the conflict resolution (identification) of apposition law takes the scope of application of law as the main line, including who, what (general or special), time (successively) and spatial area.

Legal discovery in legal conflicts is based on a set of conflict resolution rules. "In hundreds of years, the law has formed a series of rules that help regulate harmony and avoid contradictions between norms. Behind it is a principle of unity and non-contradiction as a hypothetical legal order. " {20} China scholars have never given up their pursuit of this ideal rule system. Although the Legislative Law has stipulated the applicable rules to exclude conflicts of laws, it is still suggested to formulate a special law applicable to laws, which should completely include the applicable rules of domestic laws, foreign-related legal relations and international laws {2 1}. In the following, the author combines the relevant provisions of the Legislative Law and the suggestions of relevant scholars to further clarify some rules for judges to choose and apply when there is a conflict between domestic laws:

First, the source rules of legal effect Laws enacted by different levels of subjects have different legal effects, that is, the superior law is superior to the subordinate law. In application, we should strictly grasp and consider the relationship between them. The main contents are as follows: (1) When the lower legal norms conflict with the higher legal norms, the lower legal norms cannot be applied. (2) Not all constitutions can be used as the basis for judging, and the case of constitutional judicature of citizens' right to education published by the Supreme People's Court is one of them {22}. (3) When the legal norms with higher effectiveness are often just general provisions and the legal norms with lower effectiveness are more specific, the legal norms with lower effectiveness can be quoted or referred to as long as they do not conflict. Regarding the principle that the superior law is superior to the subordinate law, Articles 78, 79 and 80 of China's Legislative Law stipulate that the Constitution has the highest legal effect, and all laws, administrative regulations, local regulations, autonomous regulations and separate regulations and rules shall not contravene the Constitution. The effectiveness of laws is higher than administrative regulations, local regulations and rules. The effectiveness of administrative regulations is higher than that of local regulations and rules. The effectiveness of local regulations is higher than that of local government regulations at the same level and lower levels. The rules formulated by the people's governments of provinces and autonomous regions are more effective than those formulated by the people's governments of cities with large cities within their respective administrative areas.

Second, the validity rule of special law refers to the rule when choosing and applying law between general law and special law. The principle of "special law is superior to general law" is usually adopted. However, only when the special law and the general law are in the same origin position can this rule or principle be adopted. Article 83 of the Legislative Law stipulates that if laws, administrative regulations, local regulations and autonomous regulations are inconsistent with the general provisions, special provisions shall apply. For example, both the Administrative Punishment Law and the Public Security Administration Punishment Law are laws, but the Public Security Administration Punishment Law is a special law. When handling administrative cases of public security administration, priority should be given to the application of the Public Security Administration Punishment Law.

Iii. Rules for Flexible Provisions Priority Application Article 8 1 of the Legislative Law stipulates that if laws, administrative regulations and local regulations are amended by autonomous regulations and separate regulations according to law, the provisions of autonomous regulations and separate regulations shall apply in this autonomous region. If laws, administrative regulations and local regulations are amended according to authorization, the provisions of laws and regulations shall apply in this special economic zone. The author thinks that the modified provision still belongs to a kind of "special provision" on a wider level, and the rule of "special law takes precedence" can be applied. However, in view of the fact that China's Legislative Law does not clearly explain the hierarchical relationship among laws, administrative regulations, autonomous regulations and separate regulations, listing a single applicable rule is not repeated. Secondly, although the laws and regulations of special economic zones are still subordinate to the laws and administrative regulations in terms of hierarchy, they not only have priority effect within the scope of allowable adaptation, but also can continue to be effective as long as they do not violate the principles of laws and administrative regulations when new laws and administrative regulations have new and different provisions on the same matter. Therefore, it should not be simply expressed as the "special law takes precedence" rule.

Fourth, the new law is superior to the old law, and the law is not retroactive. Article 83 of the Legislative Law stipulates that if the laws, administrative regulations, local regulations, autonomous regulations and separate regulations formulated by the same organ are inconsistent with the old provisions, the new provisions shall apply. This is the stipulation that the new law is superior to the old one. Its theoretical basis is that once the latter law makes different provisions from the previous law, it is presumed that the same law-making organ has changed the contents expressed in the previous law, so the relevant provisions of the latter law should be applied {24}. However, "the new law is superior to the old law" will bring another problem: can the new law be applied to events and behaviors that occurred before and were dealt with after its entry into force? If that's the case, the people can't help but be on tenterhooks all day, because tomorrow's law can control his behavior today. How unfair and absurd this is! Therefore, in order to amend this rule, the rule of "law has no retroactivity" appeared in the law. Here, Article 84 of the Legislative Law stipulates that laws, administrative regulations, local regulations, autonomous regulations and separate regulations and rules shall not be retroactive, except for special provisions made to better protect the rights and interests of citizens, legal persons and other organizations. The "proviso" part of this article is another "favorable retroactivity" rule, which seems to amend the "non-retroactivity" rule.

Fifth, the rule of legal validity of interpretation here refers to the validity between statutory interpretation and interpreted law. Under the same conditions as the subject of interpretation and the subject of formulation, the statutory interpretation and the interpreted law have the same legal effect. Article 47 of the Legislative Law stipulates that "the legal interpretation of the NPC Standing Committee has the same effect as the law." When the subject of interpretation is not the original subject, the effect of interpretation is lower than that of legislation. Legal interpretation shall not conflict with the interpreted law, otherwise the interpretation is invalid.

Sixthly, legal norms are usually divided into mandatory norms and arbitrary norms according to the strength of the applicable effectiveness of the norms. Mandatory norms are generally related to the order and interests of the country and society, which are uniformly applied regardless of whether individuals are willing or not, and are relatively common in the scope of public law. Arbitrary norms refer to norms chosen by individuals themselves, which are often related to personal interests. In the absence of mandatory laws, individuals can freely decide to choose and apply.