主动乎? 被动乎?——略论民初大理院对习惯的规制

Initiative Or Passivism:A Discussion on the Regulation of Civil and Commercial Customs By Da-Li-Yuan

民初,民商法规的不完备及混乱状态,与不断增多的民商事纠纷导致司法机关陷入法律适用的困阨之境。为缓解这一困境,大理院依据职权,通过对民商事习惯的采择、肯认与否弃,从而形成一习惯规制机制,并对下属各级审判机关产生示范效应和拘束力。大理院此举,既是解决司法实践需要与经费不足的被动应对,同时也是大理院推事法律观念转变的例证,更是他们"司法造法"主动性不断增强的体现。

During the early Republic China, because of the incomplete and chaotic civil and commercial laws, and the increasing of civil and commercial disputes, the judicial departments were in a dilemma of applying law. To alleviate it, Da-Li-Yuan selected and approved and abandoned some from the civil and commercial customs, thus formed a regulation mechanism which had an effect and binding force on the subordinate courts of judicature. What the Da-Li-Yuan did was not only a passive coping with the needs of judicial practice and shortage of money, but also an example of changing of the jurists＇ ideal, even a reflection of increasing initiative of their creating-laws.