Social Sciences in China (Chinese Edition)

No.9, 2019

 

A Civil Law Perspective on the Interpretation of the Relationship between Principle and Exception

(Abstract)

 

Yi Jun

 

The phenomenon of principles vs exceptions exists everywhere in law and jurisprudence, especially in the field of civil law that sees systematization as a standard. In the sense of normative connections, the relationship between principle and exception means that where there are two or more related norms, one is a norm of principle and the other a norm of exception. The latter is a deviation from the former, providing a behavioral mode that is opposite to that offered by the former. The relationship between principle and exception should be distinguished; it exists in many forms, and is an important link in systemic relations. In terms of logic, it is not the norm of principle itself but rather the combination of the norm of principle and the norm of exception, or the entirety of the factual elements constituted by the two, that have the force to produce legal effect. In the normative sense, the relationship between principle and exception has a significant influence upon legal interpretation, arguing by analogy, and burden of proof. In legal interpretation, norms of exception should be strictly interpreted. In application by analogy, it is commonly held that the norm of exception should not be applied in arguing by analogy; and in the case of burden of proof, it can broadly be supposed that the party proposing the effect of the norm of principle should undertake the burden of proof with regard to the essential facts of that norm, while the party contesting its effect should have to present evidence for the essential facts of the norm of exception. The handling of the relationship between principle and exception is one of important tasks in civil legislation and is an important criterion for the degree to which civil legislation has a scientific and systemic nature. In this respect, civil legislation in China still has a long way to go.