拉伦茨裁判方法之系统分析

A Systematical Analysis of Larenz’s Jurisprudence Method Theory

拉伦茨方法论体系的基础是欧洲传统的“名判”逻辑技术,其目标是达到个案的公平判决。当作为裁判依据的总体法与条法不足时,法官可“续造法”。所续造的“法”不是条法,而仅是为达到公判而对诸条法的自主运用,它应该有“现行法”的拘束力。为使体系内自主运用条法成为可能,本来不足的体系内“条法库”由审判员以诸种技术补足。介于法律准则之间的或宪法内条法的不谐则依赖“法益衡量”技术解决。因片面突出法官的自主地位,拉伦茨方法论在本质上是现代法治社会一种尚需调制的折衷系统。

The jurisprudence method theory of Larenz is based on the traditional European “definition judgment” logic, the ideal of which is to secure that each single case is justly decided. Where no general law or specific sections can be invoked for a specific judgment, a judge can go on making laws. The “law” made in this way is not deemed a specific section, but only a discretionary application of the section in a law by the judge to form a fair judgment. However, this kind of “law” is binding as if it were an existing act in law. To secure the discretionary application of this section in a law, a judge should use all kinds of techniques to supplement the deficient section-reservoirs in the law. The conflicts between legal principles or between sections within the Constitution can be avoided by adopting the “interests-weighing method.” Because of its one-sided emphasis of independent position!of judges, Larenz’s method theory is in essence a compromise in the modern law society, which needs modifying.