类推适用与法律原则

ON THE ANALOGY WITH THE LEGAL PRINCIPLE

在现有法律不能为法官提供一个现成的裁判依据时,类推是法官常用的裁判方法。但是类推并不能确保裁判结论的准确性,关键在于拟判事实与拟类推适用的规则之间的相似性判断——比较点的选择。考夫曼提出用"事物本质"作为该比较点,但是该观点不可取,应该以法律原则作为该比较点。

As the law can not usually provide a ready norm for the magistrate, the analogy is commonly used by the judge. But the analogy does not ensure the accuracy of the decision. The key is the choice of comparison points which is between the facts of cases and the rules. Kaufman proposed that ＂nature of thing＂ as the comparison point, but this paper thinks it is not desirable and proposed that the principle of law should be treated as the comparison point.