法教义学的巅峰 德国法律评注文化及其中国前景考察

The Himalaya of Legal Dogmatics A Study on the Culture of Legal Commentaries in Germany and Their Future in China

法律评注是一类有欧陆法学尤其是德国法学特色的文献,近年来在国内颇受关注。在德国,法律评注以逐条释义为基本特征,通常卷帙浩繁、作者众多、影响巨大,其不仅是法律文献中的集大成者,亦是德国法学方法论的载体和法律文化的缩影。法律评注的灵魂在于为司法实践服务,由此衍生出一系列关键特征,包括以解释现行法为中心、竭力回答一切问题、重视案例甚于学说和秉承法教义学的方法。法律评注的产生与繁荣需要成文法、法教义学、司法统一等制度条件,并有赖于出版社、作者等利益群体的支持。基于类似原因,虽然普通法领域不存在法律评注,但在普通法国家的成文法领域却依然产生了法律评注或与之类似的文献。在我国,引入法律评注于司法实践、法学教育、法学研究及立法工作均有意义,制度条件大体齐备,亦不乏相关群体支持,虽然目前仍面临若干挑战,诸多细节亦有待摸索,但法律评注在中国之未来不可限量。

Legal commentaries, which in recent years have attracted much attention in China, are a special genre of legal literature in many European countries and especially in Germany. A commentary, as exemplified by the German one, provides an article--by--article analysis of a code. The completed work, which often contains multiple volumes and includes the input of numerous authors, exerts a tremendous influence over the local legal community and thus makes itself not only an outstanding genre of the Ger- man legal literature, but also the carrier of German legal dogmatics as well as a mirror of German legal culture. The spirit of legal commentaries lies in their practical orientation, which is embodied in impor- tant features, such as a focus on interpreting the current law, a goal of covering all the legal issues in one book, an emphasis on actual cases as well as academic literature, and an adherence to legal dogmatics. The existence and success of the legal commentary depends on three basic criteria： a statutory law sys- tem, legal dogmatics and unified jurisdiction. It also requires the support from important interest groups, namely authors and publishers. The ongoing adoption of a legal commentary in China will benefit not only legal practice, hut also legal research, legal education, and legislative work. The above--mentioned pre- requisites already have been mostly satisfied in China. The support from interest groups is also available. Despite some potential challenges and teehnical problems, legal commentaries in China wilt certainly flourish.