民法领域中创造性司法的实现途径及其边界——以原则和规则的区分为基础

The Way to Realize the Creative Adjudication and Its Boundary in the Civil Law Field——On the basis of distinction between principles and rules

如何在大陆法系的语境下实现创造性司法以弥补成文法灵活性之不足,一直以来都是困扰我国民法学界的难题。重拾被遗忘的法益,并在法益分类的基础上考察原则与规则的区别与联系,不难发现,应当通过严格解释部分民法基本原则的方式实现创造性司法,以此保障法益的生成。通过严格解释原则实现创造性司法的过程,并没有推定出一种私权利的存在,而是认可了未上升为权利的法益的正当性,这种认可只具有个案效力。

It is puzzled by the question that how to realize the creative adjudication to make up for the lack of flexibility of statute law in the context of the continental law system for a long time in the civil law field. After restoring the forgotten legal interest and inspecting distinctions and connections between principles and rules on the basis of classification of legal interests, it is not hard to find that we should realize the creative adjudication through the way of strict explanation of part of basic principles in the civil law field, to ensure the generation of legal interests. Reminding that this kind of realizing process does not presume the existence of a private right, but recognize the legitimacy of legal interests that not ascended as rights, and the recognition has effects only in individual cases.