案例群方法的重构

Reconstruction of the Case Group Method

案例群方法形成于概括条款的司法具体化实践。既有理论主张案例群方法通过类型化的方式,构造概括条款构成要件,实现概括条款的适用。但案例群方法并不独立创造式地构造概括条款的构成要件,其同概括条款司法具体化仅具有发生学关联,而不具有唯一对应性。作为一种二阶法律方法,案例群方法指向作为一阶法律方法的法律解释、法律漏洞填补方法、概括条款司法具体化,核心是归纳、固定一阶法律方法形成的规范方案,辅助待决案件法律规范涵摄案件事实,因而其适用范围应从概括条款拓展为所有法律适用。在案例指导和类案检索制度的背景下,案例群方法应定位为案例自发适用方法,通过案例链条证成规范方案,以明示援引规范归纳形成的规范方案,解决待决案件的法律规范涵摄问题。

The case group method is developed from the practice of judicial concretization of general clauses.Existing theoretical claims,the inability of general clauses to directly encompass the related practices,and the need to supplement their values make it difficult for legal practitioners to solve the problems in the application of general clauses through traditional legal methods such as legal interpretation and closing legal loopholes.In judicial concretization of general clauses,the case group method constructs the constituent elements of general clauses through typification,thereby realizing their application.However,this proposition improperly equates the case group method with judicial concretization of general clauses,thus limiting the methodological function and space of the method.Judicial concretization of general clauses is based on the creative construction of alternative constitutive elements in individual case judgments and can include the case comparison method and the case group method.In judicial concretization of general clauses,the creative construction of substitute elements in individual case judgments is accompanied by the risk of arbitrary judgments;the case comparison method tests the rationality of alternative constitutive elements while discovering common facts in different cases and laying the foundation for fixing alternative constitutive elements for the case group method;and the case group method plays a role in inducing and fixing alternative elements,and can overcome the weakness of the dispersion of the case comparison method.Therefore,there is only a causal relationship but no unique correspondence between the case group method and judicial concretization of general clauses.The case group method can go beyond the specific method of judicial concretization of general clauses and is a second-order legal method mainly based on formal functions.As a self-observation and normative tool of the methodological system and guided by the values of legal stability and predictability,it standardizes first-order legal methods such as legal interpretation,legal loophole-closing methods,and the method of judicial concretization of general clauses,thereby enhancing the rationality and stability of the results of the application of first-order legal methods.The core of the case group method is to summarize and fix the normative scheme formed by first-order legal methods and to assist the legal norms of pending cases in encompassing the facts of the case,thereby expanding the scope of application from the application of general clauses to the application of all legal norms.In the context of case guidance and similar case retrieval system,the case group method should be positioned as a spontaneous application method of cases,which proves normative solutions through case chains,explicitly cites normative solutions formed through normative induction,solves the legal normative inclusion problems of pending cases,and achieves law-based and reasonable judgments.