How to write the logical structure of legal rules urgently ... kneeling, online, etc.

At present, there are three views on the logical structure of legal norms. The first is the traditional three-element theory, which holds that legal norms consist of three parts: hypothesis, handling and sanctions. The second is the theory of two elements, which holds that legal norms are composed of behavior patterns and legal consequences; The third is the emerging theory of three elements, which holds that legal norms are composed of conditions, behavior patterns and legal consequences. The author thinks that there are some problems in these three viewpoints. Through the analysis of these three viewpoints, this paper puts forward my own humble opinion in order to seek advice from Fang Jia.

I. Comments on existing viewpoints

1. These three viewpoints all think that the core element of legal norms is the provision of rights and obligations, that is, what people can do, what they should do and what they cannot do; Everyone thinks that the logical elements of legal norms include legal consequences; Everyone thinks that legal norms are content, legal provisions are form, and there is not a one-to-one relationship between legal norms and legal provisions. A legal provision can contain several legal norms, and a legal norm can be embodied in several legal provisions.

First, mandatory rules do not stipulate legal consequences, and mandatory rules do not necessarily have legal consequences. Some scholars believe that legal rules can be divided into three types according to different behavior patterns: authorization, command and prohibition, or authorization and obligation (prohibition). Authorization here includes granting rights or granting power. " Some scholars believe that legal rules can be divided into three types in content: authorization rules, obligation rules and authority rules. Another scholar believes that legal rules can be divided into "authorized rules and mandatory rules" according to their different substantive contents. The author thinks that scholars' opinions are different, but the essence is the same. They all think that legal rules are divided into authorized rules and mandatory rules. "Authoritative rules are rules that show that people can act or not act or ask others to act or not act. The function of authorization rules is to give people the right to construct, change or terminate their legal status or legal relationship, provide behavior patterns for people's independent behavior and benign interaction, and provide motivation and rule guarantee for the benign operation and development of society. The characteristic of authorization rule is to provide certain freedom of choice for the right subject, which is not mandatory for the right subject. It neither forces the right holder to take action nor forces the right holder to take action. On the contrary, it provides a space for the actor's actions and omissions to choose freely. " From the above quotation, we can know that the authorization rule contains neither negative consequences-sanctions nor positive consequences-rewards. If people do well for the right behavior, the law may reward them, but this is not absolute. If people do something they shouldn't do, the law will generally punish them, but it is not absolute. The investigation of civil liability needs to be put forward by the obligee himself; Some administrative responsibilities and criminal responsibilities must be investigated by the obligee (or the victim) himself. If the obligee does not mention it himself, it is impossible to pursue the person who violates the obligation.

Second, some legal departments have no legal consequences. The legal department "is the sum total of different legal norms according to the different nature, different fields and different methods of adjusting social relations." Scholars generally hold this view. According to the different social relations and ways of legal adjustment, China's legal system can be divided into the following main legal departments: (1), constitutional legal department; (2), administrative and legal departments; (3) Legal Department of Civil and Commercial Law; (4) Legal Department of Economic Law; (5) Legal Department of Labor Law; (6) Department of Science, Education, Culture, Health and Law; (7) Legal Department of Resources and Environmental Protection Law; (8), the criminal law department; (9) The procedural law of the legal department; (10), military legal system. Many scholars believe that there are no legal consequences in the constitutional provisions. Some scholars believe that "in many legal provisions, in order to facilitate legislation and avoid unnecessary repetition, legal consequences are often not stipulated, but only behavior patterns are stipulated. This is true of many articles in the Constitution. " Some scholars also believe that "most of the current constitutional provisions are incomplete norms, which is of course because the constitution is a Dafa and a parent law. It is impossible and should not stipulate the legal consequences in detail in the Constitution, but the provisions of the Constitution should not be vague and should be implemented through corresponding departmental regulations and separate regulations. " It should be pointed out that these scholars only think that the constitutional provisions have no legal consequences, and do not think that the constitutional legal department has no legal consequences. Their theoretical basis is the connection and difference between legal norms and legal provisions. Scholars generally believe that legal norms and legal provisions are the relationship between content and form, legal norms are the content of legal provisions, and legal provisions are the literal expression and manifestation of legal norms. There is not a one-to-one relationship between legal norms and legal provisions. A legal provision can contain a part of the logical structure of a legal norm, or two or more, but it can also be a part of the logical structure of a legal norm expressed by different legal provisions in a legal document, or even a part of the logical structure of a legal norm expressed by two different legal documents. The author thinks that the constitutional law department has no legal consequences. If so, do the legal consequences stipulated in other legal documents belong to the constitutional legal department? Or does it belong to other legal departments? Legal consequences can only belong to one legal department, because any legal department is composed of some similar legal norms, and a complete legal norm is composed of behavior patterns and legal consequences. The legal consequences of the above-mentioned adult citizens' right to vote and stand for election belong to either the constitutional department or the criminal law department. And if the legal consequences belong to only one legal department, another legal department will not exist. This will contradict the theory of division of legal departments. The division between the criminal law department and the constitutional department is recognized. Therefore, the author believes that the solution to this problem is to admit that the constitutional legal department has no legal consequences. In fact, apart from the constitutional law department, the procedural law department has no legal consequences.

Thirdly, if we think that legal consequences are the logical elements of legal norms, it also conflicts with legislative practice. When the legislature legislates, not all legal norms stipulate legal consequences, only mandatory norms stipulate legal consequences. Moreover, when people violate mandatory norms, not everyone will encounter punitive legal consequences. Only when the obligor violates his obligations and causes great harm to society can the legal consequences of sanctions be stipulated, that is, legal liability. If it is an act that is not harmful to society, or it is easy to correct in the future, or it is an act that the obligor generally does not violate, there will be no legal consequences.

2. The traditional "three elements" theory holds that there is only one kind of sanctions, and there is no reward. The legal consequences are all positive, and there are no negative legal consequences. I think this is open to question. This view holds that "the legal consequences should not include' remuneration'. Although the state does provide incentives for some behaviors that are beneficial to society through legislation, from the perspective of the structure of legal norms, these incentives actually belong to the authorization of the' handling' part of the three elements. The actor has the right to obtain certain benefits, such as certain material or spiritual rewards, because he has engaged in behaviors beneficial to society, and the corresponding subject has the obligation to make him obtain such benefits. If we look at the causal chain of a complete legal normative structure, all the rights granted by the law must be protected through the provisions on sanctions, which just shows that one of the basic characteristics of legal adjustment lies in the national compulsion of the law, that is, legal responsibility must be investigated for illegal acts, and legal rights must be protected through sanctions against illegal acts. " The author believes that the reward does not belong to the "case handling" part of the three elements, but belongs to the legal consequences. It is debatable that the authorized reward belongs to the "treatment" part and the authorized punishment belongs to the legal consequence part. If there is no reward, the obligor may be held accountable; Whether or not the penalty is imposed, the obligor can be held accountable, which is another legal norm. This view holds that: "The legal consequences are all positive, and no matter whether the norms stipulate rights, obligations or legal responsibilities for illegal acts, they are all positive legal relations. The state has a negative attitude towards the illegal act itself, but the legal responsibilities and sanctions arising from the illegal acts stipulated by legal norms are legal and affirmative. "

3. The emerging two-element theory holds that the applicable conditions of norms are not the logical elements of legal norms, which is debatable. There are two main reasons for this view that "the applicable conditions of norms" are not the logical elements of legal norms: first, although "the applicable conditions of norms" exist, they are already included in the behavior pattern and are not a relatively independent element; Second, many legal norms do not have the "conditions for the application of norms". Some scholars have discussed this and put forward three reasons: First, any legal norm has "conditions for the application of norms". Without it, "a legal norm will be in an absolute and unconditional state, and the result will only make the legal norm lose its standardization, go to its own opposite and become an arbitrary thing." The second is "the applicable conditions of norms" and "the problems to be solved are different or have their own emphasis". "The problems to be solved by the applicable conditions of norms are the time and place of behavior, the subject, scope and object of behavior, and so on." Therefore, it is hard to believe that "the applicable conditions of norms" are not a relatively independent factor. Third, "denying that many legal norms are one of the logical elements of the legal norm structure on the grounds that there is no' hypothesis' or' applicable conditions of norms' is confusing the logical analysis and actual analysis of the legal norm structure. Because the purpose of analyzing the structure of legal norms from a logical point of view is to find out the elements that must be considered and reflected when setting legal norms, whether the' conditions for the application of norms' are listed as specific parts when actually setting legal norms is the actual performance of the structure of legal norms. It is believed that many legal norms do not have the part of' applicable conditions of norms', which only shows that the trial conditions of these norms are not listed separately in the actual manifestations of norms. " The author believes that the scholar's argument that "the applicable conditions of norms" are the logical elements of legal norms is very sufficient. The author further demonstrates the independence of "the applicable conditions of norms". The rights and obligations set in legal norms are concrete, and the rights and obligations of the subject can only be determined under specific circumstances. In some cases, rights will be deprived.

Two, the logical structure of legal norms is only composed of applicable conditions (or assumptions) and behavior patterns (or processing methods).

According to the above analysis, the author thinks that the elements of legal consequences are a complete legal norm, and the logical structure of legal norms is only composed of applicable conditions (or assumptions) and behavior patterns (or treatment methods).

1. Theoretically, the legal consequence element itself is a complete legal norm.

Legal norm is a kind of behavior rule, which guides or constrains people's behavior and stipulates what people can do, what they should do and what they are forbidden to do. This can be done as long as there are conditions and behavior patterns for standard application. A legal norm should have only one applicable condition, but not two applicable conditions at the same time. A legal norm should be aimed at the same person or the same type of person, not at two people or two different types of people at the same time. If we think that legal consequences are the logical elements of legal norms, it will lead to a legal norm or two applicable conditions for two people or two different types of people at the same time. When the legal consequence is to bear civil liability, there are two applicable conditions for the emergence of a legal norm.

2. Some scholars see that the constituent elements of legal consequences are a complete legal norm, but they are unwilling to deny the original theory.

Some scholars believe that the logical elements of the structure of legal norms are composed of three parts: the applicable conditions of norms, generalized behavior patterns and legal consequences. "The logical elements of the structure of legal norms are most intuitive and common: the applicable conditions of norms+behavior patterns; Behavior patterns. " Scholars have realized that the element of "legal consequences" itself has the meaning of "behavior pattern", which may be an authorized behavior pattern, a compulsory behavior pattern or a prohibited behavior pattern. Therefore, in the actual performance of the legal norm structure, the "legal consequence" of one legal norm can also be the "behavior pattern" of another legal norm. This situation is manifested as follows: (1) expressing the "legal consequences" of one norm as the "behavior pattern" of another norm; Combine the "standard applicable conditions" and "behavior mode" of one specification with the "standard applicable conditions" of another specification. "The scholar also cited Article 174 of the Criminal Law and Article 106 of the General Principles of the Civil Law as examples. Article 174 of the Criminal Law stipulates:' Whoever intentionally destroys precious cultural relics and places of interest protected by the state shall be sentenced to fixed-term imprisonment of not more than seven years or criminal detention'. On one hand, the term "fixed-term imprisonment of not more than seven years or criminal detention" here belongs to the negative legal consequences of norms. The full text of the specification reads: No one may intentionally destroy the precious cultural relics and places of interest protected by the state (the' applicable conditions of the specification' listed in the list) (the mode of prohibited sexual behavior), and offenders will be sentenced to fixed-term imprisonment of not more than seven years or criminal detention (with negative legal consequences); On the other hand, the first half of this article is the "conditions for the application of norms" part, and the second half is the "behavior mode" part, that is, the functions and powers of relevant state organs. The "legal consequences" part can be obtained from the crime of favoritism stipulated in Article 188 of the Criminal Law. This is obviously a complete legal norm. "The author thinks that this scholar's analysis is worth learning, but the conclusion is debatable. As the scholar said, the first half of the sentence generally applies to anyone; The second half of the sentence applies to specific state organs and their staff. This should belong to two different legal norms and different legal departments. The former belongs to the cultural relics management law, while the latter belongs to the criminal law. Regarding the inconsistency between the logical form and the actual expression form of the legal norm structure, the scholar thinks that "the actual expression form of the legal norm structure is logical in essence, but illogical on the surface, so it can also be said to be vivid and flexible. "I think this is debatable. Logical structure is the induction and summary of realistic structure, and it is the basis of logical structure, which should be consistent with realistic structure. If there is any inconsistency, it shows that the logical structure as a theory is abstract and inaccurate to the real structure and needs to be corrected, because the real structure as a practice cannot go wrong.

Some scholars believe that a complete legal norm logically contains three factors: assumption, handling and sanctions, but in real life it must be expressed by state orders, and state orders only contain two factors, that is, "if …… then". As long as these two factors are possessed, it has the basic qualities and functions of a rule of conduct, so this kind of national order can be called mandatory legal rules. According to the different contents and functions, it can be divided into two categories: one is composed of two factors: "hypothesis" and "handling", which are called adjustment rules, stipulating the rights and obligations of the subject in specific occasions, aiming at establishing normal legal order and implementing the adjustment function of the law; The other is called protective rule, which consists of two factors: hypothesis and sanction. It provides sanctions for illegal acts, aiming at maintaining the normal legal order or restoring the destroyed social order. There is an inherent logical connection between the rules that realize the supervision function and the rules that realize the protection function, and they must be combined to give full play to the legal function. The "hypothesis" in the protective rules is precisely the factual state of the "handling" part that violates the adjustment rules. We combine the supervision rules and protection rules which are inevitably related in content to form a logically complete legal norm, which consists of three elements: assumption, handling and sanctions. "The author believes that both regulatory rules and protection rules are composed of' hypothesis' and' treatment'. Because "sanctions" are "handling" and "sanctions" are "handling" for another situation. For example, the "sanction" stipulated in Article 66 of the above-mentioned Partnership Enterprise Law means that when a partner violates the provisions of Article 5 of the Law, the administrative department for industry and commerce is authorized to manage and punish him. This provision itself is a kind of "treatment", but the "treatment" is aimed at the industrial and commercial administrative departments and their staff, not at the partners. In addition, regulatory rules do not have to be combined with protective rules to give full play to the role of law. First, in many cases, the obligee can directly file a lawsuit according to the supervision rules and ask the judge for protection. The judge can also make a judgment directly according to the supervision rules and support the request of the obligee. At this time, the law does not stipulate protective rules. For example, the first paragraph of Article 38 of the Marriage Law stipulates: "After divorce, the party who does not directly raise the children has the right to visit the children, and the other party has the obligation to help. "If a parent who is raising a child refuses the other parent to visit the child, the law does not impose' sanctions' on the parent who refuses to perform the obligation of assistance. Can't the party who has the right to visit enjoy the right? No, the obligee can bring a lawsuit to the court and ask to visit his children, and the judge will decide to support his request. If the obligor still refuses, the creditor may apply for compulsory execution. Secondly, in some cases, the regulatory rules and protection rules are not seamlessly connected, which leads to the failure of protection rules to play a role. For example, Article 20 of the Marriage Law stipulates: "Husband and wife have the obligation to support each other. When one party fails to perform the maintenance obligation, the party in need of maintenance has the right to ask the other party to pay the maintenance fee. "The party who has the obligation to support is not obligated, but if the circumstances are not bad, the protection rules stipulated in the Criminal Law will not work, because Article 26 1 of the Criminal Law stipulates:" Whoever refuses to support the elderly, young, sick or other people who have no ability to live independently shall have the obligation to support, and if the circumstances are bad, he shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or control. "The rights of the obligee can't be protected? That's not true. The obligee may bring a lawsuit to the court according to Article 20 of the Marriage Law quoted above, requesting the court to protect his rights, and the court shall make a judgment in support of the obligee to protect his rights according to law.

3. From the practice of legal research, scholars write academic papers and works according to the applicable conditions and behavior patterns of norms.

Although scholars disagree on the logical structure of legal norms, it is generally accepted that law is the general name of legal norms. Starting from this definition, when studying the specific departmental law, it is necessary to find out how many legal norms there are in this departmental law, so that readers can know how many legal norms there are in this departmental law after reading academic papers and works. But so far, we haven't seen a paper or a book clearly telling us how many legal norms there are in a certain department law, and telling us the contents of these legal norms according to their respective logical structure theory of legal norms. In practice, it is basically written in accordance with the order and content of legal provisions. In this way, the logical structure theory of legal norms in jurisprudence is out of touch with the research practice of specific departmental law. When the theory is divorced from practice, it means that there is something wrong with the theory and it needs to be revised. Scholars write according to the order and content of legal provisions, in fact, they write according to the applicable conditions and behavior patterns of norms. Because the legal provisions that embody the legal norms either directly stipulate the applicable conditions and behavior patterns of the norms, or only stipulate the behavior patterns, and imply the applicable conditions of the norms, so the legal provisions include the applicable conditions and behavior patterns of the norms.

4. From the perspective of administrative law enforcement and court judicial practice, administrative law enforcement organs and courts also make administrative decisions and judgments according to the applicable conditions and behavior patterns of norms.

In practice, administrative decisions made by administrative law enforcement organs are directly based on applicable laws and regulations. For example, when a nutrition and health care product company makes false propaganda about the product performance, the administrative department for industry and commerce should first determine that the company has violated the law with reference to Article 9 of the Anti-Unfair Competition Law, and then decide how to punish it with reference to Article 24. The administrative department uses two legal provisions respectively, and the two provisions play different roles. Article 9 is used to judge whether the company's behavior is illegal, and article 24 is used as the basis for punishing the company. If the law does not stipulate that administrative punishment can be imposed on this kind of behavior, the administrative department for industry and commerce cannot punish the company. Is article 9 useless at this time? If you think that legal consequences are the constituent elements of legal norms, you will think that norms are incomplete and cannot play a role. Practice shows that legal provisions without legal consequences can still play a role. The Anti-Unfair Competition Law has no provisions on administrative responsibility for the sale below cost stipulated in Article 1 1, tying behavior stipulated in Article 12, and defamation of goodwill stipulated in Article 14. The administrative department for industry and commerce cannot impose administrative penalties on operators who have three behaviors: selling below cost, tying and damaging goodwill. However, it can be informed that its behavior is an illegal act in violation of the Anti-Unfair Competition Law, and it can be ordered to stop the illegal act, and the operator will stop the illegal act. The judgment made by the court is also directly based on the applicable legal provisions. When the shareholders of a joint stock limited company are judged by the court to be in debt to the company, and the shareholders have no other property to pay off the debt, and the shares held by the shareholders have not been auctioned, the court thinks that according to the provisions of Article 149 of the Company Law, the company can use the creditor's rights owned by the shareholders as the purchase money to purchase the shares held by the shareholders, and then cancel these shares, so as to achieve the purpose of paying off the debts between the shareholders and the company. But to achieve this step, it must be authorized by the company's shareholders' meeting. Before the acquisition, the shareholder is still the controlling shareholder of the company, and the company cannot make such a resolution at the shareholders' meeting. In order to solve this problem, the court made a ruling according to the provisions of Item 11, Paragraph 1 of Article 140 of the Civil Procedure Law, forcibly purchasing the shares held by the shareholders, and then canceling these shares. The two legal provisions cited in this ruling have no legal consequences.

Third, the theoretical and practical significance that legal norms only consist of normative conditions (or assumptions) and behavior patterns (or treatment methods).

1. It can solve the contradiction between the theory of logical structure of legal norms and the theory of division of legal norms.

According to the previous analysis, when we regard legal consequences as the logical elements of legal norms, there will be contradictions between the logical structure theory of legal norms and the division theory of legal norms, because authorized rules do not stipulate legal consequences, and mandatory rules do not necessarily stipulate legal consequences. When we regard the legal consequences as a complete legal rule, we don't need to consider whether the legal rules contain legal consequences. In this way, the reason for the contradiction between the theory of logical structure of legal norms and the theory of division of legal norms does not exist, and the contradiction between them naturally does not exist.

2. It can solve the contradiction between the theory of legal norms and the theory of legal departments.

Similarly, according to the previous analysis, when we regard the legal consequences as the logical elements of legal norms, it will lead to the disappearance of the criminal law department, the constitutional law department and the procedural law department, because the content stipulated by the criminal law department belongs to the legal consequences and cannot be formed as a separate legal department, while the constitutional law and the procedural law department do not stipulate legal consequences. When we regard the legal consequences as a complete legal norm, the content stipulated in the criminal law can form a legal department separately, and the legal department of the Constitution and the procedural law is also a legal department composed of complete legal norms. In this way, the contradiction between the theory of legal norms and the theory of legal departments is solved.

3. It can provide theoretical basis for the establishment of new legal departments such as economic law.

The division standard of legal departments recognized by legal scholars is social relations (that is, the object of legal adjustment) and the method of legal adjustment. They are combined because "although the social relations adjusted by legal norms are very important standards for dividing legal departments", "they can neither explain that a legal department (such as the criminal law legal department) can adjust different kinds of social relations, nor explain the legal phenomenon that the same social relations need to be adjusted by different legal departments." "Therefore, the division of legal departments needs to be based on the adjustment method of legal norms." Moreover, the adjustment method of a legal department "is unique first, because it is significantly different from that of all other legal departments, and secondly, it is omnipotent, because there is no other way to adjust the social relations of the objects that make up this legal department." According to this theory, to demonstrate the emergence and existence of a new legal department, it is necessary to demonstrate that it has a unique adjustment object and adjustment method. Some scholars of economic law argue that economic law is a new and independent legal department, which is based on this idea. In order to deny that economic law is an independent legal department, scholars also demonstrate according to this idea, but they think that economic law has no unique adjustment object and method. Some scholars think that this is a dead end, because there are only three methods of legal adjustment: civil, criminal and administrative, while there are about ten methods of legal department. There is something wrong with this theory and it needs to be abandoned. I agree with this view. The author believes that there are problems in the recognized theory of division of legal departments. The author demonstrates the contradiction between the theory of legal norms and the theory of legal departments, and the solution is to define the logical elements of legal norms as normative conditions (or assumptions) and behavior patterns (or treatment methods). In this way, the standard of dividing legal departments is only the object of adjustment. As long as it is proved that economic law has its unique adjustment object, we can draw the conclusion that a new legal department like economic law has been formed.

4. It can provide guidance for legislation and law enforcement practice.

When legislating, the legislature needs to consider the coordination and operability between legal norms. If the authorized norms are formulated, it is necessary to stipulate the supporting mandatory norms to protect the rights of the obligee from illegal infringement and provide legal relief for the obligee. If the debtor's breach of obligations will not cause damage to the creditor's personal and property, there is no need to formulate norms to investigate the debtor's responsibility, because creditors can bring a lawsuit to the court according to the norms of rights and obligations and request the court to protect them. The court may make a judgment according to the norms of rights and obligations and order the obligor to perform his obligations. If the debtor fails to perform his obligations according to the judgment, the creditor may apply to the court for enforcement. If the debtor's breach of obligations may cause damage to the creditor's personal and property, it is necessary to formulate another norm to investigate the debtor's responsibility. Whether to formulate one, two and three depends on the nature of the damage caused by the obligor and the value orientation of the legislator. If the damage is not great, the legislator thinks that it is not necessary to pursue administrative responsibility and criminal responsibility, then it is enough to formulate a legal norm to pursue civil responsibility. If legislators think it is necessary to investigate administrative responsibility, they need to formulate two legal norms of civil responsibility and administrative responsibility to investigate. If the damage is serious and the legislator thinks it is necessary to investigate criminal responsibility, it is necessary to formulate three legal norms of investigating civil responsibility, administrative responsibility and criminal responsibility. Civil liability is the basic responsibility. As long as there is personal and property damage, the obligor should be liable for compensation, and both are indispensable. The stipulation of administrative responsibility and criminal responsibility depends on the value orientation of legislators, who can stipulate what they think is necessary.

In the process of investigating and dealing with illegal acts, administrative law enforcement organs must administer according to law. If the obligor commits an illegal act, only when the law stipulates that the obligor shall be investigated for administrative responsibility or criminal responsibility can the obligor be investigated for administrative responsibility or brought to court for criminal responsibility. If there is no law to investigate the administrative responsibility or criminal responsibility of the obligor, the obligor cannot be investigated for administrative responsibility, nor can he bring a criminal responsibility lawsuit to the court, but the obligor can be ordered to stop the illegal act.

To sum up, the author believes that the elements of legal consequences are a complete legal norm, and the logical structure of legal norms is only composed of applicable conditions (or assumptions) and behavior patterns (or treatment methods).