民初选举诉讼中的“法官造法”

The Judicial Lawmaking in the Electoral Lawsuits in the Early Years of the Republic of China

民国初年乃是中国法律大变动的时期,由于国会立法成绩有限,在司法与执法过程中存在很多法律漏洞;作为司法机关的大理院不得不通过抽象的判决例和解释例来进行"司法续造"。针对选举诉讼这一高度政治化的案件类型,大理院准用民事诉讼程序,通过行使终审权与司法解释权规范了诉讼程序、澄清了选举规则。在这个过程中,大理院顶住国会、行政机关与地方割据势力的压力,在兼顾人民的诉讼权利与选举制度公正有效的同时,努力落实国家选举法制的统一。据统计,在民国北京政府大理院2012件解释例与3900余个判决例中,涉及议员选举纠纷的有50件司法解释与72个判例要旨,由此可以分门别类地研究当时最高司法机关在相关领域的"法官造法"。

There were radical changes of the legal system in the early years of the Republic of China Due to the limited legislative achievements of the parliament, there were many legal loopholes in the process of judicature and law enforcement. Therefore, as the Supreme Court, the Dali Court had to carry out judicial lawmaking through abstract case law and judicial interpretations. In the electoral lawsuits which were highly political issues,Dali Court standardized the judicial procedure and clarified the rules of the election by adjudication and judicial interpretation. And in this process, the Dali Court was under pressure from the Congress, the administration as well as the local separatists. While taking into account the rights of the people＇s litigation and the fair and effective election system, Dali Court tried to imple- ment the unification of the legal system of the national election. Based on the study of 2012 judicial inter pretations and more than 3900 abstract case laws of Dali Court in the period of Beijing government of the Republic of China, this article retrieves 50 judicial interpretations and 72 essentials of judicial precedent for the election disputes of the assemblymen, aiming to research the judicial lawmaking of the highest ju dicial organs.