法律适用:实然与应然的对接

Legal Application:Abutment between Being and Ought-to-be

法律适用并不是简单的包摄与被包摄关系。制定法的不合目的性、不周延性、模糊性及滞后性决定了法律规范不仅是不明确的,而且是有漏洞的。因此,在法律适用过程中,法官往往需要经过设证、归纳及类推等环节才能最后确定可以适用于待决案件的裁判规则。不仅如此,从法律适用的过程观察,法律适用实际上是应然的法律规范与实然的案件事实不断接近,以致最后对接起来的创造性司法活动。

Legal application cannot be simply described as subsuming or being subsumed. Legal regulations to be ambiguous or even flawed due to the vague purpose, lack of continuity, ambiguity and hysteretic nature in the process of legal prescription. Therefore, in the process of legal ap process of presumption, induction and analogy before coming to the final In addition, examining the process of legal judicial activity and a Continuous approach plication, the judges need to undergo the judging principles for application, we can conclude that legal application between ought- to- be legal regulations and being the cases in fact is the facts involved. a creative of cases.