从司法解释到典型案例:传统成文法理论的终结

The Culmination of the Traditional Written Law Theory:from Judicial Explanations to Typical Cases

回顾大陆法系和我国法制的发展，便发现那种要求“法官审理案件只能以法律的明文规定为依据，司法解释和制例不具有立法功能”的成文法理论，不过是对大陆法系19世纪的历史描述而已；我国的立法及司法实践也早已告别这种传统成文法理论。现在该是理论上宣告其终结的时候了。

When we look back upon the development of the continental legal system and China's legal system, it can be found that the written law theory is nothing but a historical depiction of the continental legal system of the 19th century, which requires that a judge, when trying a case, should only go by the stipulations in explicit terms of the law and should believe that judicia1 explanations and guiding judicial decisions are of no legislative functions. China's present-day legislative and judicial practice has long parted from this traditional written law theory. Now it is high time to proclaim the ending of this theory.