论“无法”司法——一种对司法过程的另类思考

On Trial When Being Lack of Law——A Kind of Offbeat Thought on the Judicial Process

我国法制建设中历来重视"有法可依、有法必依"。但是对司法过程中普遍存在的"无法"司法问题却有认识不足的倾向。所谓"无法"司法是指在法律没有规定、法律规定不明或者法律规定相互冲突等情况下,由于法官不能拒绝裁判理念的要求,法官必须解决现实的社会纠纷。"无法"司法是以法官自由裁量权和司法经验为表征的,在司法过程中具有普适性。但是"无法司法"毕竟与严格依法原则有冲突,因此也应当对"无法"司法进行必要的规制。

The viewpoint that “law could be complied, law should be complied” has been emphasized since the beginning of the legal development in China. However, little attention has been paid to the problem of trial when being lack of law, which is a common phenomenon during the course of judicature. This article expatiates the meaning and the nature of the theory of trial when being lack of law, explains its certainty during the course of judicature, summarizes and discusses all of its theoretical modes. According to this article, it is unavoidable that laws have lacunae and defects, but judges cannot refuse to try just because of them, and the theory of trial when being lack of law, whose characteristics are judicial discretion and judicial experience, has a general application. Nevertheless, it does contradict with the principle of “rule by law”, and therefore it is necessary that trial when being lack of law should be limited and retaliated