关于法官民法思维的反思与建构

Reflection and Construction of Judges' Civil Law Thinking

基层民商事法官在自由裁量中会很容易展现出一种思维的混乱,或者机械适用法律,或者漫无边际地行使自由裁量权。基层法院语境下民商事疑难案件自由裁量的司法实践中,统一、精准、致密的民法思维的缺失折射法官精英化改革之殇。本文通过实证分析的方法,探究基层法院民商事法官自由裁量失范的现状,并提出以大陆法系的司法技术科学(请求权基础理论及民法解释学)为理论奠基,建构我国基层法院民商事法官精准的民法思维。

It is easy for the basic civil and commercial judges to show a kind of confusion of thinking in the discretion, or apply the law mechanically, or exercise the discretion indiscriminately. In the judicial practice of discretion of civil and commercial difficult cases in the context of grass-roots courts, the lack of unified, precise and compact civil law thinking reflects the death of judges’ elite reform. Through the method of empirical analysis, this paper probes into the present situation of the discretion of civil and commercial judges in grass-roots courts, and puts forward the foundation of the theory based on the judicial technology science(the basic theory of the right of claim and the hermeneutics of civil law) in the continental law system. To construct the accurate civil law thinking of the civil and commercial judges in the basic courts of our country.