基于后果评价的法律适用方法

The Method of Legal Application Based on Consequential Evaluation

基于后果评价的法律适用是司法裁判的必要形式和具体方法,其逻辑机制在于裁决后果逆向地影响裁判依据的选择。确需改变按照既定规则的法律推理及论证结构是基于后果评价的法律适用方法应用的条件,其旨在为疑难案件司法确立正当的裁判规范。司法裁决的抽象后果或称"规范性后果"是法律适用通过后果评价而为合理裁判的可依赖后果。既定法秩序内的根据是法律适用后果评价实质衡量中具有优先性的理由,而既定法秩序外的根据以其属性和功能对后果评价的实质衡量发挥着特殊作用。

The application of law based on consequential evaluation is a necessary ibrm, also a speclllc method, in judicial adjudication, and its logic mechanism is that the consequence of judicial decision retroac- tively influences the choice of judicial basis. The necessity to change the legal reasoning based on the estab- lished rule and its argument structure is the precondition to apply the method of legal application based on con- sequential evaluation, which aims at establishing the justified norms for the judiciary in handling hard cases. The abstract consequence （ also called＂ norm consequence＂） of judicial decision is the dependable conse- quence for legal application to make a reasonable judgment by the consequential evaluation. The grounds in the existing order of the law are the preferential reasons in substantive measure about the consequential evaluation for legal application, and the grounds outside the existing order of the law have a special impact on substantive measure with their properties and functions.