“明显违背立法本意”之追问——评《审判监督解释》第13条第六项

a Inquiry to the "Violated the Intention of Legislation Obviously"——On the sixth subparagraph of the Article 13 of the interpretation of the retrial surveillance

《审判监督解释》第13条第六项将"明显违背立法本意"作为适用法律错误的情形之一。多数情况下,无须刻意探寻立法本意即可正确处理案件。基于语义的不确定性、法律规则冲突过多、立法水平有待提高等原因,我国不少法律的"立法本意"有时并不值得探讨,或者根本就不存在。通过探寻立法本意以求正确地适用法律、处理案件,存在诸多难以逾越的障碍,可行性相当有限,实际效果可能有违初衷。

＂Violated the intention of legislation obviously＂ has been taken as one of the situations of applying the law by error in the sixth subparagraph of the Article 13 of the interpretation of the retrial surveillance. At most circumstances, there＇s no need to search the intention of legislation, and the cases still can he disposed accurately. For the uncertainty of the acceptations, too many conflicts of the legal rules, the low-level of legislation, the intentions of legislation of many laws sometimes aren＇t worth being searched, or not existed. There＇ re many obstacles to apply the law and deal with the case accurately by way searching the intention of legislation, lacking of feasibility, and the actual effects may be far from the intention.