抉择于形式合理性与实质合理性的法律解释——源于对“法官经商案”的再思

Legal Interpretation of Choosing Between Formal Rationality and Essential Rationality——Re-thinking of the "Judge Involved in Business" Case

在"法官经商协议有效案"中,法官认为被告所签经商协议之效力不因违反法官不得经商之法律规定而无效,其中所隐含的法律解释逻辑及深层理论基石是形式合理性与实质合理性之间的博弈——兼顾法律规定字面含义而符合法律体系划分所体现的法治精神的温和的实质合理性。从法经济学的角度观之,此种解释的当代合理性在于实现了效益最大化。

In the case of validity of judge involved in business, the judge believes that the business agreement signed by the defendant is valid though the judge breaks the law that a judge should not involved in business. The legal logical implication and theoretical foundation is the game between formal rationality and essential rationality- the mild essential rationality of legal spirit that the game embodies in both fitting into the lieral meaning of legal regulations and according with the division of legal system. From the perspective of law and economics, the contemporary rationality of this interpretation lies in the realization of maximum benefit.