关键词: 利益衡量, 法律方法, 法律漏洞, 规制

Abstract:  The ideologic basis of the Japanese balance of interests originated from German free law and jurisprudence of interests, and was deeply influenced by American legal realism Coupled with its special background, Japanese balance of interests has formed a theory completely different from the one proposed by jurisprudence of interests Devoid of similar background, China should set necessary regulations on balance of interests in judicial practice Is it an independent method of law application, or which method of law does it belong to? How to regulate the judge in judicial practice in the use of balance of interests? From the holistic point of view, the former belongs to the issue of attribution types—one of the compensation processes of legal loophole; for the latter, it should be regulated from three aspects: the applicable scope, applicable order and applicable rules

Key words:  balance of interests, legal method, legal loophole, rules and regulations