法律解释抑或司法造法?——论案例指导制度的法律定位

Construction of Law or Judicial Law Making

先在于政治国家、超越人类社会发展历史形态、处理争议事件的市民性司法权是司法权的本质属性,后来政治国家权力体系中以国家名义行使的司法权首先是市民性裁判权,然后才是宪政意义上的政治性司法权。无论是市民性司法权还是作为政治性司法权,都具有法律解释、司法造法的属性。禁止司法造法主要是指禁止司法机关像立法机关那样主动立法、抽象立法,并不反对司法机关在具体纠纷处理过程中的被动性、补充性立法。案例指导制度作为规范司法权行使的制度,既是法律解释机制也是司法造法机制。

The nature of judicial power existed first as civil power of judiciary which was beyond political states and the historical form of the development of human societies. Later judicial power was excised as civilian power of decisions,and then as political power of judiciary in Constitution. No matter civil power of judiciary or political judicial power,they both have the features of construction and law making. Prohibition of judicial law making means to exclude legislation voluntarily and abstractly by judicial authorities,just as the legislatives do. However,it does not mean that the judicial authorities do not have the right to make rules reactively and complementarily during deciding cases. Guidance of precedents is a system which aims to regulate exercise of judicial power and functions as construction of law as well as judicial law making.