“裁判依据”与“裁判理由”的法理再辨——以社会主义核心价值观的法源定位为中心

A Jurisprudence-based Reconsideration of"Adjudicative Basis"and"Adjudicative Reasons"--Centered on the Nature of Socialist Core Values as a Legal Authority

社会主义核心价值观经由立法机关立法以及最高司法机关制定文件进入法规范性文件之后,必然存在司法如何对其加以运用的问题。立足“正式法律渊源—非正式法律渊源”与“效力渊源—认知渊源”的法源划分,可对核心价值观的“法源之争”进行类型化分析。未入法的社会主义核心价值观属于非正式渊源,入法后呈现为立法目的或者法律原则的属于正式渊源和认知渊源,入法后呈现为法律规则的属于正式渊源和效力渊源。进而未入法的社会主义核心价值观可作为裁判理由,入法后呈现为立法目的或者法律原则的社会主义核心价值观可作为裁判依据(欠缺法律规则时)或裁判理由(不欠缺法律规则时),入法后呈现为法律规则的可作为裁判依据。

After the socialist core values are incorporated into normative documents through legislation by the legislature and document making by the supreme judicial organs,there is inevitably an issue of how the judiciary applies them.This paper is based on the division of legal authorities into being"formal legal source-informal legal source"and"effectiveness-oriented source-cognition-oriented source",and focuses its discussion on the"battle on the legal source"concerning the core values,and holds that the core values that have not been incorporated into laws are informal source,those that have been presented as legislative purposes or legal principles after legal incorporation are formal and cognition-oriented,and those that have been presented as legal rules after legal incorporation are formal and effectiveness-oriented,and then a typological induction is made on the specific nature of the socialist core values as an adjudicative basis or an adjudicative reason in individual cases,that is,socialist core values that have not been incorporated into the laws can be used as adjudicative basis,those that have been presented as legislative purposes or legal principles after legal incorporation can be used as an adjudicative basis(in the absence of legal rules)or an adjudicative reason(without absence of legal rules),and those that have been presented as legal rules after legal incorporation can be used as an adjudicative basis.