立法表达的司法面向及其反向要求  

On the Judicature Dimension of Legislation Formulation and Its Reversed Requirements

作　　者：周赟[1] Zhou Yun

机构地区：[1]厦门大学法学院,厦门361005

出　　处：《四川大学学报（哲学社会科学版）》2023年第1期128-137,196,共11页Journal of Sichuan University：Philosophy and Social Science Edition

基　　金：国家社会科学基金后期资助重点项目“司法评鉴的应然逻辑与制度构建”(22FFX003)。

摘　　要：历史地看,立法者制定立法之法的重要目的之一是制约法官等用法者的专断/主观能动性。但这种认识预设了一个错误的前提,即立法者可以单方面完成法律的创制。而实际上,立法之法注定只能是法律的一种原材料,它的真正完成内在地需要法官等用法者的主观能动性的发挥。这意味着,立法表达必须保持司法(用法)面向,以一种相互合作、相互成就的立场看待司法能动性,进而通过一定的举措主动而预先地为法官主观能动性的发挥保留一定的空间。One most important purpose of legislation is to restrict judges or others activity and discretion.A premise to achieve this goal is that legislator could complete legislation completely just by himself,and then judges could and should play a negative and passive role when applicating law.However,this prejudice is invalidate because judges activity and discretion is an inner and necessary factor in operation of legislation for the following 4 reasons:1)legislative law is only a raw material for judges to construct major premise of judicial decision;2)legislative law is not self-explanatory,with its normative meaning based on a conceptual system which is anterior and external to legislation;3)legislative law is in nature to be continued by judges because what legislator could provide is not a law but only a carrier of law,that is,any law(such as a norm,or principle,etc.)is an outcoming of judge s interpretation on the carrier;4)as the proverb goes,“A mere act is not enough to act on its own”.We could draw a conclusion that legislation is just a step of making law,and what legislator can do is only to provide semi-finished product or even raw material of law.This conclusion means at least 4 requirements to China's legislation today:to make opening and sketch,indeterminate legislation so that judges could make a subtle and appropriate judicial decision according to law;to abandon the intention to set too high or strict standard legislation which means too difficult to applicate and enforce;to restrain preference to determine a definition in legislation;and to restrain or abandon preference to make legislative explanations.To sum up,legislator should orient judicature and hold a posture to seek cooperation with judges when doing legislation formulation,and leave some place for judges activity and discretion.Legislator should not believe arrogantly that he could stifle and abolish judges discretion by doing something,which almost leads legislator to fall into a dilemma.So,it is wise for legislator to be cautious an

关 键 词：立法之法 法条主义 司法面向 主观能动性 

分 类 号：D903[政治法律—法学理论]