司法解释与成文法

On the Relationship between Judicial Interpretation and Written Law

司法解释与成文法之间存在一种微妙的关系:一方面司法解释的价值在于弥补成文法自身不能克服的缺陷;另一方面司法解释在一定程度上又削弱了制定法的权威地位,某些司法解释甚至有侵犯立法权的嫌疑。司法解释的发布必须遵循如下规则:以法律文本的存在为前提;与具体案件相结合;遵循法律文本的最根本原则;选择适当的解释方法。

The relationship between judicial interpretation and written law is subtle. On the one hand, the value of interpretation lies in remedying legislative defect; on the other hand, the former weakens the authority of the latter in some degree and even some interpretations come under suspicion of having harmed the legislative power. Nevertheless, it is necessary to let judicial interpretation exist. But to avoid the legislative role being replaced by judicial interpretation, the following rules must be adhered to while making any interpretation. First, the interpretation must originate from the written law. Second, it should coincide with the concrete case. Third, it must follow the fundamental principle of the written law, and last, the appropriate methods of interpretation must be chosen.