关于法官依常理断案的思考

On the Common Sense in the Ruling by the Judge

常理客观地存在于法的制定和实施中,法官依常理断案可以弥补成文法的局限性,削减法官对事实认识的局限。然而,由于社会公众的不理解以及法官法律论证能力的欠缺,法官依常理断案时常陷入困境。法官依常理断案并不是也不应当是完全任意的,应当结合中国实际设计一些具体的制度与规则,尽量将法官依常理断案的副作用降低到不影响裁判的正当性、准确性的程度。

Common sense objectively exists in the formulation and implementation of law, the fact that the judge in accordance with common sense makes a ruling can make up for the limitations of the existing law, decrease the limitations of the understanding of the facts by the judge. However, due to the public＇s lack of understanding and the lack of the ability to judge the legal reasoning, when a judge makes a ruling in accordance with common sense he is often in trouble. Making a ruling in accordance with common sense is not equal to making a totally arbitrary ruling in which the judge should take China＇s actual design of the system and some specific rules into account to evade its side-effects in order to attain its legitimacy and accuracy.