法典化时代的法律方法研究——中国法律方法论研究报告(2019—2021)

The Legal Methods in the Age of Codification——Report on the Research of Legal Methodology in China (2019—2021)

《民法典》开启了中国法典化的进程,对法律方法论的研究也产生了重要影响,这些影响在近三年的研究成果中已经开始显现。在具体法律方法的研究成果中,法律发现方法借助于《民法典》第10条的新规定,深度挖掘和扩展了法律渊源;法律解释方法的研究更加重视目的解释和体系解释,前者挖掘法典规定背后的决定因素,后者统筹处理法典诸多规定之间的关系;法律推理方法中的司法推定也围绕《民法典》的相应规定展开;漏洞补充方法聚焦于《民法典》制定后遗留的若干不足;利益衡量方法则借助于法益概念在刑事法中得到更多关注。在部门法法律方法中,关于《民法典》实施的研究成果最为丰富,由此也对其他部门法及其法典化进程产生扩散影响。法律方法论的研究应当继续深度参与法典化进程。

The Civil Code started the process of codification in China, and also had an important impact on the study of legal methodology, which has begun to appear in the research results of the past three years. The research on legal dogmatics and legal thinking is less affected by the process of codification, and continues to form effective support for adjudication theory, which contains more reviews and reflections at the same time. As to the legal methods, the method of legal discovery, with the new provisions of Article 10 of the Civil Code as a beginning, deeply excavates and expands the legal sources;the research on methods of legal interpretation pays more attention to purposive interpretation and systematic interpretation: the former is trying to find determining factors, and the latter coordinates the relationship between many provisions of the Code;judicial presumptions in the method of legal reasoning also operate based on the corresponding provisions in the Civil Code;the method of supplementing loopholes focuses on some deficiencies left over after the operation of the Civil Code;the method of balancing interests relies on the concept of legal interest has received more attention in criminal law. Among the legal methods of departmental law, the research on the implementation of the Civil Code is the most abundant, which also has a diffuse impact on other departmental laws and their codification process. Research on legal methodology should continue to be deeply involved in the codification process.