文义解释的优先性及其限制
发布时间：2018-11-28 12:41
【摘要】：文义解释,是指依照语词明显的、通常的含义或者法律上的、专门的含义,来对法律的内容进行清晰阐述的法律解释方法,而不考虑法条字面含义以外的因素。已经达成的共识是：文义解释是解释的出发点,具有适用上的优先性。但是文义解释是否具有决定上的优先性,还是存在一定的分歧。主要包括三种观点：文义解释的决定论、文义解释的非决定论,以及文义解释的相对优先性。本文持的是第三种观点,即在一般的情况下,文义解释的结果具有决定上的优先性,不需要考虑其它的解释方法；当出现一定的情形时,则这种优先性要接受挑战。 文义解释的优先性不仅在于文义解释在适用上更为简易,而且还有其予以保护的价值。具体来说,文义解释的优先性基于其解释结果的客观性、可维护法律意义的稳定性,以及基于法条的相对独立性。当然这种优先性仅仅是一种相对的优先性,法官一方面要重视法律的明确性和安定性,另一方面也要重视法律内容适用于个案的公平正义。在具体的司法过程中,法官并不是机械地适用法条的,他必须防止法律决定论的思维方式,兼顾形式上和实质上的因素,使得司法判决达到一种最大程度的可接受性,在这个过程中法官不可避免地会运用其自由裁量权。这种主观性的价值判断也并不是任意的,否则就会演变成司法上的恣意。在法律解释方法的运用上表现为：在什么情形下应该排除文义解释的适用?具体来说,当适用文义解释有缺陷时,当文义解释的结果与明显的立法意图相违背时,以及当文义解释的结果与社会上重要的价值相背离时,就应该考虑排除文义解释的适用。 当排除文义解释的适用之后,我们应该怎样去得出结论呢?这里有两种情形：当法条的语义模糊或者适用文义解释有两种以上的结论时,则采用各种解释方法相互渗透的方式来确定最终的结论；当文义解释的结果与其它解释方法的结果相冲突、与重大的社会价值相冲突,或者与重大的社会现实相冲突时,法官可以考虑用其它解释方法或者是法律原则来排除文义解释的适用。
[Abstract]:Literal interpretation refers to a method of legal interpretation that clearly states the content of a law according to the obvious, usual or legal meaning of a word, and does not consider factors beyond the literal meaning of a law. There is a consensus that the interpretation of meaning is the starting point of interpretation and has the priority of application. However, there are still some differences on whether the interpretation of literary meaning has the priority of decision. There are three viewpoints: determinism of textual interpretation, non-determinism of textual interpretation, and relative priority of textual interpretation. This paper holds the third view, that is, under general circumstances, the result of semantic interpretation is decisive and does not need to consider other interpretation methods, but this priority is challenged when a certain situation arises. The priority of literary interpretation lies not only in its simpler application, but also in its value of protection. Specifically, the preference of literary interpretation is based on the objectivity of the interpretation result, the stability of legal meaning and the relative independence of law. Of course, this priority is only a relative priority. On the one hand, the judge should attach importance to the clarity and stability of the law, on the other hand, the content of the law should be applied to the fairness and justice of the case. In a specific judicial process, the judge does not apply the law mechanically. He must prevent the way of thinking of legal determinism and take into account both formal and substantive factors, so that the judicial decision can reach a maximum degree of acceptability. In this process, judges will inevitably exercise their discretion. This subjective value judgment is not arbitrary, otherwise it will evolve into judicial arbitrariness. In the application of the method of legal interpretation: under what circumstances should we exclude the application of literary interpretation? Specifically, when there are defects in the application of the interpretation of meaning, when the result of the interpretation of cultural meaning is contrary to the obvious legislative intent, and when the result of the interpretation of the meaning of text deviates from the important value of the society, it should be considered to exclude the application of the interpretation of literary meaning. How can we come to a conclusion when we exclude the application of textual interpretation? There are two kinds of cases: when the meaning of the law is vague or there are two or more conclusions in the interpretation of the applicable meaning, the final conclusion is determined by the mutual penetration of various interpretation methods; When the result of textual interpretation conflicts with the results of other interpretation methods, with significant social values, or with significant social realities, Judges may consider using other means of interpretation or legal principles to exclude the application of textual interpretation.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D90-055
本文编号：2362852
[Abstract]:Literal interpretation refers to a method of legal interpretation that clearly states the content of a law according to the obvious, usual or legal meaning of a word, and does not consider factors beyond the literal meaning of a law. There is a consensus that the interpretation of meaning is the starting point of interpretation and has the priority of application. However, there are still some differences on whether the interpretation of literary meaning has the priority of decision. There are three viewpoints: determinism of textual interpretation, non-determinism of textual interpretation, and relative priority of textual interpretation. This paper holds the third view, that is, under general circumstances, the result of semantic interpretation is decisive and does not need to consider other interpretation methods, but this priority is challenged when a certain situation arises. The priority of literary interpretation lies not only in its simpler application, but also in its value of protection. Specifically, the preference of literary interpretation is based on the objectivity of the interpretation result, the stability of legal meaning and the relative independence of law. Of course, this priority is only a relative priority. On the one hand, the judge should attach importance to the clarity and stability of the law, on the other hand, the content of the law should be applied to the fairness and justice of the case. In a specific judicial process, the judge does not apply the law mechanically. He must prevent the way of thinking of legal determinism and take into account both formal and substantive factors, so that the judicial decision can reach a maximum degree of acceptability. In this process, judges will inevitably exercise their discretion. This subjective value judgment is not arbitrary, otherwise it will evolve into judicial arbitrariness. In the application of the method of legal interpretation: under what circumstances should we exclude the application of literary interpretation? Specifically, when there are defects in the application of the interpretation of meaning, when the result of the interpretation of cultural meaning is contrary to the obvious legislative intent, and when the result of the interpretation of the meaning of text deviates from the important value of the society, it should be considered to exclude the application of the interpretation of literary meaning. How can we come to a conclusion when we exclude the application of textual interpretation? There are two kinds of cases: when the meaning of the law is vague or there are two or more conclusions in the interpretation of the applicable meaning, the final conclusion is determined by the mutual penetration of various interpretation methods; When the result of textual interpretation conflicts with the results of other interpretation methods, with significant social values, or with significant social realities, Judges may consider using other means of interpretation or legal principles to exclude the application of textual interpretation.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D90-055
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