论法律原则的司法适用——从规范性法学方法论角度的一个分析

法律原则之把握,与其给以界说,毋宁探究其适用;而在司法实践中,法律原则的适用大凡有四种情形第一,原则与规则一致情形下,原则作为规则的基础和指引。第二,规则缺位的情形下,适用原则以作漏洞补充。第三,原则与规则相冲突的情形下,适用原则创制规则的例外。第四,原则之间相互冲突情形下的特别复杂的适用。四种情形也可能在结构上交叉耦合,其中第一种情形已为人熟知,而其他情形,尤其是三、四两种则有待深究。本文即力图从规范性法学方法论的纵深角度,探讨法律原则之司法适用的逻辑结构。

As far as legal principles are concerned, it is more vital to explore their apllications in judicial trials than to define them. In general, there exist four situations in which legal principles are applied in judicial practices. Firstly, the principle will act as the basis and guidance of the rule when a legal principle is in accord with a legal rule. Secondly, a legal principle will be applied for dealing with the legal loophole when a legal rule is missed. Thirdly, a legal principle will be used for making an exception of a legal rule when the principle conflicts with the rule. Finally, the situation in which legal principles are conflicted is especially complicated. These four situations may be structurally intercrossed and overlapping. And the first situation of the application of principles has been well known, but the other situations, especially the third and fourth situations are in need of more research . From the deep perspective of normative jurisprudential methodology, this article attempts to investigate the logical structure of the judicial application of legal principles.