法官造法的时机

发布时间：2018-10-20 07:49

【摘要】：法官造法是源于英美法系的一项制度规则，随着两大法系的日益交融与相互间的取长补短，大陆法系也开始适度沿用法官造法这一规则，如德国行政法中明确出现承认法官造法这一行为的规定。我国虽然在立法上不承认法官造法，但在司法实践中却存在大量事实上造法的情形。法官造法作为一种现实的存在，有其诸多的优越性，也有其难以克服的弊端，因此，对其加以研究有着深刻的现实意义。法官造法是法律应对社会关系流变的必然要求，具有民主正当性，，是法律解释的必然结果，也是个案利益衡量的题中之义。法官造法亦有着严格的条件，即法官造法有其时机的要求，主要包括规则选择阶段的法官造法及定案阶段的法官造法。就我国的具体情形而言，立法机关制定法的有效供给不足决定了法官造法的客观存在，裁判依据选择的宽泛灵活为法官提供了造法的空间和机遇，“情理社会”亦给法官造法提供了可能。但应当指出，中国的法官造法即使应予承认，也并非就宜于强行提倡和主张；法官造法须受到严格限制，不得在未具备造法时机的情况下强行造法；即使在具备法官造法时机的情况下，法官亦应尊重规则；同时，作为判例的判决意见应充分说理。
[Abstract]:Judge making law is a system rule originated from the common law system. With the increasingly blending of the two legal systems and the complementing of each other, the civil law system also begins to use the rule of judge making law moderately. For example, in German administrative law there is a clear recognition of the act of judge-making. Although our country does not recognize the judge to make the law in the legislation, but in the judicial practice, there are a large number of situations of making the law in fact. As a kind of realistic existence, the judge law has many advantages, but also has its insurmountable malpractice, therefore, it has profound practical significance to study it. Law making by judges is an inevitable requirement for law to respond to the change of social relations, with democratic legitimacy, is the inevitable result of legal interpretation, and is also the meaning of interest measurement in individual cases. The judge makes the law also has the strict condition, namely the judge makes the law to have its time request, mainly includes the rule choice stage judges to make the law and the final case stage to make the law. As far as the concrete situation of our country is concerned, the insufficiency of the effective supply of legislatures determines the objective existence of the judge's making law, and the wide flexibility of the judge's choice provides the judge with the space and opportunity to make the law. The rational society also provides the possibility for the judge to make the law. However, it should be pointed out that even if it should be recognized, it is not appropriate for judges to advocate and advocate it by force. Judges should be strictly restricted from making laws without the time to make them. Judges should respect the rules even if they have the time to make the law, and a judgment as a case should be fully reasoned.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.2

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