裁判要旨生成的逻辑机理——规范解释发现裁判规则

On the Logic Mechanism of the Generation of Judicial Gist——Judicial Rules Concluded from Legal Interpretation

规范之势,法条有尽,事情无穷。汉语法律表意系统内,时有规范而无事实指向,抑或时有事实而无规范指向。当事实有具体的规范指向时,司法裁判的过程区分为事实构建过程与依据三段论涵摄推理二个阶段,前者依据规范关系衡平当事双方权利义务,在证据规则引导下,遵循构成要件认定规范性基本事实,后者通过三段论逻辑路径的法律推理进行归摄及价值判断。法官在大前提与规范性基本事实间往返顾盼选择解决方案,给予个案正当性的结论。

In the field of laws and regulations, despite of the much elaborated legal provisions, the actual cases are sometimes emergent and changeful. In the Chinese signifying system, there may be without case indications when laws and regulations exist. Or there are without legal or regulatory origins when actual cases emerge. When there are specific legal origins for actual cases, the process of judicial adjudication can be distinguished as two phases, the fact construction process and the subsumed inference syllogism process, in which the former balances the rights and obligations between the parties according to normative relations, identify basic normative facts in accordance with constitutive components under the guidance of evidence rules, while the latter makes subsumed and value determination through legal reasoning of syllogism logical path. The judges determine resolutions through cautious deliberation between the major premises and basic normative cases so as to make justified and legitimate sentences to individual cases,