重申立法宜粗不宜细

Reiterate that the Legislation Should be Rough Rather than Fine

精细化的立法思想逐渐在国内占据主流,改革开放之初确立的"立法宜粗不宜细"思想被视为业已过时的权宜之计。然而,在精细化的立法导向之下,法律会面临适用范围狭窄的问题,立法发展的路径、司法的能动性亦会受到限制。精细的立法也会助长人们对立法的不合理的期待,助长国家权力的扩张而使得私人自治的领域受到侵蚀。故宜粗不宜细的理念需要重申,其应当被视为不过时的立法的智慧,是立法者理性限度的必然,更是立法者谦逊的立法态度的彰显。在法律粗疏之处,法律欲达至丰满可在法律的实施中通过社会生活的事实、法官的自由裁量以及当事人的理性予以必要的补充与完善。

The refined legislative thinking has gradually occupied the mainstream in China. The idea of "legislation should be rough rather than fine" established at the beginning of reform and opening up is regarded as an outdated expediency. However, under the adjunct of refined legislation, the law will face a narrow scope of application, and the path of legislative development and the initiative of the judiciary will also be restricted. Fine legislation will also encourage people’s unreasonable expectations of legislation, and encourage the expansion of state power to erode the field of private autonomy. Therefore, the idea of being rough rather than fine needs to be reiterated. It should be regarded as the wisdom of the legislation that is not outdated, the inevitable result of the rational limits of the legislators, and the manifestation of the modest legislative attitude of the legislators. In the rough part of the law, the legal desire to achieve fullness can be supplemented and improved through the facts of social life, the discretion of judges and the rationality of the parties in the implementation of the law.