Roles Of Comparative Law To Legal Interpretation And Application

5252 words - 22 pages

COMPARATIVE LAW
2013
GROUP 6 – CLC35

1/1/2013

Role of Comparative Law
to legal interpretation and application

Role of Comparative Law to legal interpretation and application

Table of Contents
I. Definition: legal interpretation and application 2
I.1 Legal Interpretation 2
I.2 Legal Application 3
II. Role of Comparative Law to legal interpretation and application 4
II.1 Role of Comparative Law to legal interpretation and application of law as the result of the harmonization and unification of law 5
II.1.1 The harmonization and unification of law 5
II.1.2 Role of Comparative Law to legal interpretation and application of law as the result of the ...view middle of the document...

It may be then be divided into 3 sorts; according to the different means it makes use of for obtaining its end.
These 3 sorts of interpretation are: literal, rational, mixed.
1. Literal interpretation is when we collect the intention of the writer from his words only, as they lie before us.
2. Rational interpretation is when his words don’t express his intention perfectly, but either exceed it, or fall short of it, so that we are going to collect it from probable or rational conjectures only.
3. Mixed interpretation is partly rational, partly literal. When his words, though they do express his intention, when rightly understood, are in themselves of doubtful meaning, and we are forced to have recourse to like conjectures to find out in what sense he used them.
Example:
As we know that in common law, the competence in legal interpretation and application is of the court. In England, the judge can change every document to avoid those stupid things. This activity is one of the parts in interpreting law of the judge.
The other activity is “Fill the splits” of the documents. So when do the documents have the splits?
The Documents have the splits when :
1. There are unclear things exist in the documents that can be explained commonly.
2. When the documents don’t notice to problem that the documents don’t pay attention at
3. When the supplies of the documents to problems make the mistakes to the others.
4. When there are mistakes of the documents, the documents can’t regulate these problems themselves although they are very clear and certain.
Or when the document has splits, the judge can:
1. Fill these splits by using common rules in England.
2. In Germany, Portugal, France: use the faithful principles, reliant principles to fill these splits in contract.
3. In Viet Nam, the first time the interpretation was carried out was in the 25th Meeting of The Standing Committee of the National Assembly. It about the interpretation of article 241.2.c Comercial Law.
The second time The Standing Committee of the National Assembly use its competence in interpretation law to explain article 19 Auditing law.

I.2 Legal Application
Application(n):
1. General: application is defined as the act of determining how to use something for a purpose.
2. Legal definition:
* The act of applying or making a request
* An oral or written formal motion, request, or petition.
Or according to Black’s Law dictionary, ‘application’:
* A putting to, placing before, preferring a request or petition to or before a person.
* The act of making a request for something.
* A written request to have a certain quantity of land at or near a certain specified place.
* A bringing together, in order to ascertain some relation or establish some connection; as the application of a rule or principle to a case or fact.
But we’re mentioning...

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