论法官造法

发布时间：2018-11-11 18:51

【摘要】： 法官造法是法官在司法过程中,在既有法律规范缺失的情况下,为解决司法实践中的具体案件和纠纷,而创制具体法律规则的创造性活动。成文法的局限性和法官不得拒绝裁判的义务,是法官造法存在和发展的重要原因。法官造法在普通法系国家由来已久,其法官造法的理论和实践经过长期的历史发展,相对发达和完善。大陆法系国家对于法官造法则经历了一个从严格禁止到逐渐接受和认可的发展过程。法官造法对平衡立法和司法的关系,促进法律的发展和完善以及解决现实中法律适用的困境具有重要意义。法官造法不是法官随意进行的活动,而是一个遵循特定的方法和途径,进行法律解释、漏洞补充和法律推理的复杂过程。我国是一个成文法国家,制定法是我国主要的法律渊源。虽然改革开放以来,我国的立法工作取得了重大进展,社会主义法律体系不断完善,但是,法律漏洞大量存在,仍然是我国法律领域存在的客观事实。然而,经济和社会生活中的纠纷和矛盾却不因此而停止发生。随着我国经济和社会的不断发展,越来越多的,前所未有的案件和纠纷,逐渐进入法官的视野。尽管法官造法并未被我国的法律所明确规定,但是在司法实践中法官却不同程度上行使着法官造法的职能。法官造法在我国有存在和发展的必要性和可能性。进行司法解释和创制“判例”是法官造法在我国的主要形式。尽管我国司法实践中的法官造法,在弥补法律漏洞、调整社会关系方面发挥了重要的作用,但是问题和缺陷也同样存在。对于我国法官造法中所存在的问题,我们不能对其禁止和取消,而是应该逐步完善和发展。只有这样,才能符合我国经济、社会发展的趋势和法治发展的规律。本文采取了理论联系实际、比较法研究和社会学的研究方法,对法官造法在国外的历史发展、法官造法的含义以及法官造法的途径和方法等理论问题进行了系统的分析和研究。在理论研究的基础上,本文对法官造法在我国存在的必要性和可能性、我国司法实践中法官造法的情况、存在的问题以及完善我国法官造法的建议等问题提出了自己的思考。
[Abstract]:Law making by judges is a creative activity for judges to create specific legal rules in the judicial process and in the absence of existing legal norms in order to solve specific cases and disputes in judicial practice. The limitation of statutory law and the judge's obligation to refuse judgment are the important reasons for the existence and development of judge's law. Judge-made law has a long history in common law countries, and its theory and practice are relatively developed and perfected after a long history. Civil law countries have experienced a process from strict prohibition to gradual acceptance and acceptance of the law making of judges. It is of great significance to balance the relationship between legislation and judicature, to promote the development and perfection of law and to solve the dilemma of law application in reality. Law making by judges is not a random activity of judges, but a complex process of legal interpretation, loophole supplement and legal reasoning in accordance with specific methods and approaches. Our country is a written law country, the enactment law is our country's main legal source. Although great progress has been made in our country's legislative work since the reform and opening up, and the socialist legal system has been continuously improved, the existence of a large number of legal loopholes is still an objective fact in the legal field of our country. However, disputes and contradictions in economic and social life do not stop because of this. With the economic and social development of our country, more and more unprecedented cases and disputes have gradually entered the field of view of judges. Although the law of judge making is not clearly stipulated by the law of our country, in the judicial practice, the judge exercises the function of making law of judge in varying degrees. There is the necessity and possibility of the existence and development of the judge law in our country. Judicial interpretation and the creation of "case law" is the main form of law making by judges in our country. Although the judge law in judicial practice in our country has played an important role in making up the legal loopholes and adjusting social relations, the problems and defects also exist. For the problems existing in the law making of judges in our country, we can't prohibit and cancel them, but should perfect and develop them step by step. Only then, can accord with our country economy, the social development tendency and the rule of law development law. This paper adopts the methods of combining theory with practice, comparative law and sociology, and makes a systematic analysis and research on the historical development of judge making law in foreign countries, the meaning of judge making law and the way and method of judge making law. On the basis of theoretical research, this paper puts forward my own thoughts on the necessity and possibility of the judge's making law in our country, the situation of the judge's making law in our country's judicial practice, the existing problems and the suggestion of perfecting the judge's making law in our country.
【学位授予单位】：北方工业大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D920.0;D926.2

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