法律解释规则分类研究
发布时间：2018-09-03 16:55
【摘要】：自上世纪九十年代以来,我国的法律解释学围绕着法律解释的必要性论题、本质论题以及实践应用论题展开研究。经多年积累,学界对法律解释学的诸多基础理论问题已有较为清晰的认识。这是我国法律解释学研究所取得的成就。不过,由于这一阶段研究的对象集中于基础理论领域,而且,知识来源也较多取自西方哲学。所以,在取得一定成绩的同时也造成我国法律解释学研究的抽象化、甚至是哲学化的局面。进而,法律解释学研究自身的这一状态也导致其在实践指导能力方面颇显尴尬。通常认为,法律解释学是用以指导法律适用这种实践问题的学问。由此来看,当前的研究存在着对于法律解释学初衷的遗忘,在一定程度上背离了学界展开法律解释学研究的初衷。所以,法律解释学的研究不能再像以前那样只是关注基础理论问题,而应该更加关注法律解释的操作问题。一个可行的解决方略就是,展开法律解释规则的研究,将复杂的法律解释原理用简约的规则形式表达出来。基于如上思考,本文以法律解释规则作为研究的主题,意图从复杂的法律解释基本原理之中,提炼出一套可兹适用的法律解释的操作规则,用规则的形式来表达法律解释的操作要求,以此提升法律解释在司法实践中的应用价值。就法律解释规则的研究现状来看,当前我国法律解释规则研究呈现出分散化、简单化、数量少的特征。可以说,法律解释规则研究在我国并没有形成一个完整的实践场域。如何在这种研究现状基础上,针对实践的需要展开本文的研究,就成为首先要解决的问题。对此,在基本的研究策略上,本文采取以分类为切入点的方式展开研究。依据可行的标准,对不同类型法律解释规则进行分类,进而实现对法律解释规则的体系化把握。在具体的分类策略上,取长补短,将大陆法系和英美法系的分类合二为一。在整体上,形成了法律解释的语言学规则和法律解释的实质性规则两种基本类型；在细节上,以法律解释规则的问题导向为前提,按照各种解释要素的不同功能将法律解释的语言学规则划分为基于语义的法律解释规则和基于体系的法律解释规则,将法律解释的实质性规则划分为基于法意的法律解释规则和基于目的的法律解释规则。在选定分类标准之后,本文首先对法律解释规则的一般理论问题进行了深入地阐述。法律解释规则的一般理论是本文的立论之基,是我们准确理解法律解释规则的基本前提。如果对于什么是法律解释规则、法律解释规则要解决什么问题以及法律解释规则是否能够解决这些问题都无法搞清的话,法律解释规则体系就失去了存在的根基。而且,当前的法律解释规则研究趋于简单化,对法律解释规则的基本内涵、问题指向、其所具有的功能、性质以及价值都存在不同程度的认识差别,所以,有必要将法律解释规则的一般理论作为本文研究的必要内容。此一部分首先对法律解释规则所要解决的问题进行了阐明,主张法律解释规则所要解决的是解释要素的恰当应用问题。之所以采取这种问题导向的研究方式而没有对法律解释规则进行概念界定,其原因在于一方面学者们对法律解释规则是什么存在着许多的认识上差别,难以简单地进行归纳总结；另一方面,对于理解法律解释规则而言,指出其所要解决的问题比归纳其概念更有价值。其后,本文对这个问题进行了细化研究,归纳出了法律解释规则的两个维度。一是法律解释规则的应用论,这个维度的法律解释规则所要解决的是解释要素的具体化问题；二是法律解释规则的位序论,这个维度的法律解释规则所要解决的是各种解释要素之间的适用顺序和效力问题。在此基础上,从司法裁判的角度对法律解释规则的可能贡献进行了分析。以“分类”为切入点进行研究,决定了本文必须对法律解释规则的分类问题进行集中探讨。首先,对国内外的几种代表性观点进行了总结,并在此基础上提出了本文的分类策略。其后,分别从形式和实质两个方面,对法律解释的要素以及由此衍生而来的法律解释规则进行了解析。第三章着力于对法律解释的语言学规则进行体系性建构。首先,对基于语义的法律解释规则进行了分析。这类解释规则主要解决语义要素何时适用以及如何适用的问题。由于语义要素是阅读法律文本的最初线索,所以语义要素在适用顺序上绝对优先；由于语义要素自身的局限性,所以,在适用效力上只具有初步优先的效力,由此,总结出关于语义要素适用的语义优先规则。在此基础上,由于语义要素通常表现为通常含义和特殊含义两种形式,所以应该根据不同的情况依据通常含义或者是特殊含义进行解释,由此,总结出依据通常含义解释规则和依据特殊含义解释规则。由于存在通常含义和特殊含义的冲突,所以又衍生出处理语义冲突的特殊含义初步优先规则。在解决了语义要素的应用问题之后,第三部分主要阐述的是基于体系要素的法律解释规则,这类解释规则主要解决体系要素何时使用、如何使用的问题。依据体系要素自身的诸多规范性要求,总结出关于体系要素适用的穷尽语义适用体系规则以及处理体系要素具体化问题的同一解释规则、同类解释规则、上下文解释规则和不赘言解释规则。第四章关注的是从整体上建构法律解释的实质性规则。首先,对基于法意的法律解释规则进行了分析,这类解释规则主要解决法意要素何时适用以及如何适用的问题。由于法意要素超越法律文本字面含义,因此只有在文本穷尽之时方可适用,由此总结出法意要素的适用规则。在此基础上,总结了处理法意要素具体化问题的相关解释规则。这些解释规则要求解释者站在立法者的立场之上,从法律文本或者立法资料当中发现立法者的意图。以此为基础,还对依据法意要素进行解释的相关操作进行了总结。这些规则要求依据法意进行解释不仅要保证解释结论与立法者意图之间的关联性,而且应当确保解释结论能够促进法意的整体和谐。然后,对基于目的的法律解释规则进行了分析,这类解释规则主要解决目的要素何时使用以及如何适用的问题。由于目的要素超越了法律文本,所以只有在穷尽其他解释要素仍然无法得到结论之时方可适用；而且,由于目的要素具有规范性,可以作为评判法律文本的标准,所以在违背个案正义的情况下,才可以适用目的要素,这就构成了目的要素适用应当遵循的解释规则。至于目的要素的具体化则应当在遵循避免主观目的代替法律目的这一基本原则指导下,通过阅读法律文本、或者依据位阶理论来发现个案中具体的法律目的。在此基础上,依据目的进行解释则要求解释者首先确定解释结论与法律目的之间的关联性,如果出现多种法律目的时则要求解释者依据比例原则进行解释,从而得出最终的解释结论。第五章,对法律解释规则的运用问题进行了分析。首先,总结归纳了几种错误运用法律解释规则的情形。然后,论证了我们应该如何恰当地理解、运用法律解释规则,这不仅有助于我们更加深刻地理解法律解释规则,而且,回应了对于法律解释规则价值的诸多质疑。最后,对指出了法律解释规则在运用过程中应该遵守的几种具体方法。
[Abstract]:Since the 1990s, legal hermeneutics in China has been focusing on the necessity, essence and practical application of legal interpretation. Over the years, the academic community has a clear understanding of many basic theoretical issues of legal hermeneutics. This is the achievement of legal hermeneutics in China. As the object of this stage is concentrated in the field of basic theory, and the source of knowledge is more from western philosophy, some achievements have been made, and at the same time, the study of legal hermeneutics in China has become abstract, even philosophical. It is generally believed that legal hermeneutics is the knowledge used to guide the practical application of law. From this point of view, the current research has forgotten the original intention of legal hermeneutics, to a certain extent, deviating from the original intention of the academic circles to conduct legal hermeneutics. Therefore, the study of legal hermeneutics can not be similar to that of legal hermeneutics. One possible solution is to study the rules of legal interpretation and express the complicated principles of legal interpretation in the form of simple rules. From the complicated basic principles of legal interpretation, this paper refines a set of applicable operational rules of legal interpretation, expresses the operational requirements of legal interpretation in the form of rules, so as to enhance the application value of legal interpretation in judicial practice. It can be said that the study of rules of law interpretation has not formed a complete field of practice in China. How to carry out this study on the basis of this research status and in view of the needs of practice has become the first problem to be solved. According to the feasible criteria, this paper classifies different types of rules of legal interpretation, and then realizes the systematic grasp of rules of legal interpretation. In detail, the linguistic rules of legal interpretation are divided into semantic-based rules of legal interpretation and system-based rules of legal interpretation according to the different functions of various elements of legal interpretation, and the substantive rules of legal interpretation are divided into two basic types: semantic-based rules of legal interpretation and system-based rules of legal interpretation. After choosing the classification criteria, this paper first expounds the general theoretical issues of the rules of legal interpretation. The general theory of the rules of legal interpretation is the basis of this paper and the basic premise for us to understand the rules of legal interpretation accurately. If it is impossible to find out what the rules of legal interpretation are, what problems the rules of legal interpretation should solve, and whether the rules of legal interpretation can solve these problems, the system of rules of legal interpretation will lose its foundation of existence. Therefore, it is necessary to take the general theory of the rules of law interpretation as the necessary content of this study. This part first clarifies the problems to be solved by the rules of law interpretation, and advocates that the rules of law interpretation should be solved by the solution. On the one hand, scholars have different understandings of what the rules of legal interpretation are, and it is difficult to summarize them simply; on the other hand, they have difficulty in understanding the rules of legal interpretation. In terms of rules, it is more valuable to point out the problems to be solved than to generalize their concepts. After that, this paper makes a detailed study of the problem and concludes two dimensions of the rules of legal interpretation. The order theory of the rules of law interpretation, the dimension of the rules of law interpretation is to solve the problems of the order and effectiveness of the application of various interpretation elements. On this basis, the possible contribution of the rules of law interpretation is analyzed from the perspective of judicial adjudication. The classification of rules of interpretation is discussed in this paper. Firstly, several representative viewpoints at home and abroad are summarized, and on this basis, the classification strategy of this paper is put forward. Then, from two aspects of form and substance, the elements of legal interpretation and the rules of legal interpretation derived therefrom are analyzed. In this paper, the linguistic rules of legal interpretation are systematically constructed. Firstly, the rules of legal interpretation based on semantics are analyzed. These rules mainly solve the problems of when and how to apply semantic elements. Firstly, because of the limitation of semantic elements, they only have the preliminary priority effect in the validity of application, and thus the semantic priority rules for the application of semantic elements are summarized. Meaning or special meaning is interpreted, from which the rules of interpretation based on common meaning and rules of interpretation based on special meaning are summarized. This paper expounds the rules of legal interpretation based on the elements of the system, which mainly solves the problems of when and how to use the elements of the system. Chapter 4 focuses on the construction of substantive rules of legal interpretation as a whole. Firstly, it analyzes the rules of legal interpretation based on legal meaning, which mainly solves the problems of when and how to apply legal elements. Essentials transcend the literal meaning of the legal text, so they can only be applied when the text is exhausted, thus summarizing the applicable rules of the elements of legal meaning. On the basis of this, the author summarizes the relevant operation of interpretation according to the elements of legal meaning. These rules require interpretation based on legal meaning not only to ensure the relevance between the interpretation conclusion and the intention of the legislator, but also to ensure that the interpretation conclusion can promote the overall harmony of legal meaning. The purpose-based rules of legal interpretation are analyzed. These rules mainly solve the problem of when and how to apply the purpose elements. Since the purpose elements go beyond the legal text, they can only be applied when the other elements of interpretation are exhausted and can not be reached a conclusion; moreover, because the purpose elements are normative, It can be used as a criterion for judging legal texts, so the elements of purpose can be applied only when it violates the justice of a case. This constitutes the interpretation rules that should be followed in the application of the elements of purpose. On this basis, the interpreter is required to first determine the relevance between the interpretation conclusion and the legal purpose, and if there are multiple legal purposes, the interpreter is required to interpret according to the principle of proportionality so as to arrive at the final interpretation. Chapter Five analyzes the application of the rules of legal interpretation. Firstly, it summarizes several cases of misapplication of the rules of legal interpretation. Then, it demonstrates how we should properly understand and apply the rules of legal interpretation, which not only helps us to understand the rules of legal interpretation more profoundly, but also responds to the law. Finally, it points out several specific methods that should be followed in the application of the rules of law interpretation.
【学位授予单位】：山东大学
【学位级别】：博士
【学位授予年份】：2016
【分类号】：D90
，
本文编号：2220603
[Abstract]:Since the 1990s, legal hermeneutics in China has been focusing on the necessity, essence and practical application of legal interpretation. Over the years, the academic community has a clear understanding of many basic theoretical issues of legal hermeneutics. This is the achievement of legal hermeneutics in China. As the object of this stage is concentrated in the field of basic theory, and the source of knowledge is more from western philosophy, some achievements have been made, and at the same time, the study of legal hermeneutics in China has become abstract, even philosophical. It is generally believed that legal hermeneutics is the knowledge used to guide the practical application of law. From this point of view, the current research has forgotten the original intention of legal hermeneutics, to a certain extent, deviating from the original intention of the academic circles to conduct legal hermeneutics. Therefore, the study of legal hermeneutics can not be similar to that of legal hermeneutics. One possible solution is to study the rules of legal interpretation and express the complicated principles of legal interpretation in the form of simple rules. From the complicated basic principles of legal interpretation, this paper refines a set of applicable operational rules of legal interpretation, expresses the operational requirements of legal interpretation in the form of rules, so as to enhance the application value of legal interpretation in judicial practice. It can be said that the study of rules of law interpretation has not formed a complete field of practice in China. How to carry out this study on the basis of this research status and in view of the needs of practice has become the first problem to be solved. According to the feasible criteria, this paper classifies different types of rules of legal interpretation, and then realizes the systematic grasp of rules of legal interpretation. In detail, the linguistic rules of legal interpretation are divided into semantic-based rules of legal interpretation and system-based rules of legal interpretation according to the different functions of various elements of legal interpretation, and the substantive rules of legal interpretation are divided into two basic types: semantic-based rules of legal interpretation and system-based rules of legal interpretation. After choosing the classification criteria, this paper first expounds the general theoretical issues of the rules of legal interpretation. The general theory of the rules of legal interpretation is the basis of this paper and the basic premise for us to understand the rules of legal interpretation accurately. If it is impossible to find out what the rules of legal interpretation are, what problems the rules of legal interpretation should solve, and whether the rules of legal interpretation can solve these problems, the system of rules of legal interpretation will lose its foundation of existence. Therefore, it is necessary to take the general theory of the rules of law interpretation as the necessary content of this study. This part first clarifies the problems to be solved by the rules of law interpretation, and advocates that the rules of law interpretation should be solved by the solution. On the one hand, scholars have different understandings of what the rules of legal interpretation are, and it is difficult to summarize them simply; on the other hand, they have difficulty in understanding the rules of legal interpretation. In terms of rules, it is more valuable to point out the problems to be solved than to generalize their concepts. After that, this paper makes a detailed study of the problem and concludes two dimensions of the rules of legal interpretation. The order theory of the rules of law interpretation, the dimension of the rules of law interpretation is to solve the problems of the order and effectiveness of the application of various interpretation elements. On this basis, the possible contribution of the rules of law interpretation is analyzed from the perspective of judicial adjudication. The classification of rules of interpretation is discussed in this paper. Firstly, several representative viewpoints at home and abroad are summarized, and on this basis, the classification strategy of this paper is put forward. Then, from two aspects of form and substance, the elements of legal interpretation and the rules of legal interpretation derived therefrom are analyzed. In this paper, the linguistic rules of legal interpretation are systematically constructed. Firstly, the rules of legal interpretation based on semantics are analyzed. These rules mainly solve the problems of when and how to apply semantic elements. Firstly, because of the limitation of semantic elements, they only have the preliminary priority effect in the validity of application, and thus the semantic priority rules for the application of semantic elements are summarized. Meaning or special meaning is interpreted, from which the rules of interpretation based on common meaning and rules of interpretation based on special meaning are summarized. This paper expounds the rules of legal interpretation based on the elements of the system, which mainly solves the problems of when and how to use the elements of the system. Chapter 4 focuses on the construction of substantive rules of legal interpretation as a whole. Firstly, it analyzes the rules of legal interpretation based on legal meaning, which mainly solves the problems of when and how to apply legal elements. Essentials transcend the literal meaning of the legal text, so they can only be applied when the text is exhausted, thus summarizing the applicable rules of the elements of legal meaning. On the basis of this, the author summarizes the relevant operation of interpretation according to the elements of legal meaning. These rules require interpretation based on legal meaning not only to ensure the relevance between the interpretation conclusion and the intention of the legislator, but also to ensure that the interpretation conclusion can promote the overall harmony of legal meaning. The purpose-based rules of legal interpretation are analyzed. These rules mainly solve the problem of when and how to apply the purpose elements. Since the purpose elements go beyond the legal text, they can only be applied when the other elements of interpretation are exhausted and can not be reached a conclusion; moreover, because the purpose elements are normative, It can be used as a criterion for judging legal texts, so the elements of purpose can be applied only when it violates the justice of a case. This constitutes the interpretation rules that should be followed in the application of the elements of purpose. On this basis, the interpreter is required to first determine the relevance between the interpretation conclusion and the legal purpose, and if there are multiple legal purposes, the interpreter is required to interpret according to the principle of proportionality so as to arrive at the final interpretation. Chapter Five analyzes the application of the rules of legal interpretation. Firstly, it summarizes several cases of misapplication of the rules of legal interpretation. Then, it demonstrates how we should properly understand and apply the rules of legal interpretation, which not only helps us to understand the rules of legal interpretation more profoundly, but also responds to the law. Finally, it points out several specific methods that should be followed in the application of the rules of law interpretation.
【学位授予单位】：山东大学
【学位级别】：博士
【学位授予年份】：2016
【分类号】：D90
，
本文编号：2220603
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