论法外空间的司法认定

A Study on the Identification of Lawless Space by the Courts

当前,我国人民法院对"悼念权"这种新型权利诉讼的裁判结论表现出明显的肯定和否定两种立场。其中,有持否定立场的法院运用法外空间理论,主张我国立法没有明文规定"悼念权",故"悼念权"纠纷应由习俗、道德调整,属于不应由法律调整的法外空间,不属于我国人民法院民事诉讼的受理范围。这一裁判思路和结论是对法外空间理论的误解,并且对法外空间的司法认定缺乏必要的说理论证,未能理顺法外空间与"法内空间"及法律漏洞的关系。相反,"法无明文规定"不能认定为法外空间,习俗、道德调整领域不是应然的法外空间,不构成法律漏洞也不能认定为法外空间,法外空间的认定权属于立法而不属于司法。

Currently,there are two contrasting positions,namely positive and negative,to litigation concerning Rights to Mourn in judicial practices by courts in China.Those in favor of the Theory of the Lawless Space advocates that as the Rights to Mourn are not stipulated explicitly in legislation,hence,disputes concerning them should fall into the sphere regulated by customs and ethnics and they are excluded from the Lawless Space.Therefore,disputes concerning Rights to Mourn are not the subjectmatter of civil litigation in the People’s Court in China.The author holds the view that the mode of judicial thinking mentioned above is a misunderstanding of the Theory of Lawless Space and it lacks of necessary reasoning in judicial decisions;also,it doesn’t rationalize the relationship among the Lawless Space,the Sphere inside the Law and the loopholes of laws.On the contrary,the author holds the opinion that those are not explicitly stipulated in law does not fall into the Lawless Space and those regulated by customs and moral values is not necessarily the Lawless Space;those are not regarded as legal loopholes does not fall into the Lawless Space and it should be determined by the legislation process,not by the judicial process.