解读“规范出发型”诉讼理念——以具体个案为基点

Analyzing the Notion of "Action From Norm": From the Point of Specific Cases

“规范出发型”和“事实出发型”是分别作为代表罗马法系和日尔曼法系诉讼理念的关键词;在中国这一有着悠久成文法传统的国度,裁判案件应在“规范出发型”理念下指导下进行。一般来说,实体法保护的权利仅限于自身框架之内,避免以虚构权利的方式达到保护利益的目的,特别是在该利益可以通过实体法上本来就具有的权利予以保护之时。在适用上,外部的基准应是民事实体法,而不应是宪法;内部的基准应是以规则为主体,只在个别情况下适用原则予以矫正或弥补。

“Action trom norm ”and “action from fact” are two key terms representing respectively the civil procedural notions in the Roman law legal system and the Germanic law legal system. Being a traditional statutory law state, China should choose “action from norm” in adjudicating its cases. Generally speaking, rights protected by a substantive law are limited within it＇ s own sphere and no interest can be protected by way of fabricating rights, especially when the interest can be protected by a substantive law that has subscribed the protection of such an interest. In practice, it is the civil substantive law but not the Constitution that should be deemed as the external criterion of the application of “action from norm,” while norms are deemed the internal criterion. Only in exceptional cases can principles be applied to correct or remedy the norm. Furthermore, some misunderstandings of the Roman law legal system and the Germanic law legal system in academic circles in China should also be removed.