摘要
卡尔·拉伦茨认为,在司法实务中,法官的首要任务不仅是从事法律解释,还需要进行法律漏洞的填补。然而,法官对于法的续造并不是无限制的,需要有一定界限和原则的约束。法律内法的续造界限在于,依据法律条文和以此法律条文为基础的潜在含义进行法律漏洞的填补,且填补需符合立法者目的、与法律评价一致。从事超越法律的法之续造,则要在法秩序之内、法漏洞之外进行特殊性的考量,以防止司法专制。法之续造活动的桥梁在于法官,法官的综合素质和职业伦理衡量着司法活动质量与效力,同时也决定着法官造法过程的能动性。
Karl Larenz believes that in judicial practice, the primary task of judges is not only to engage in statutory interpretation, but also to fill in legal loopholes. However, judges’ development of law is not unlimited and requires certain boundaries and principles of constraint. The limits of the development of law inside itself lies in filling legal loopholes based on legal provisions and the underlying meanings based on these legal provisions, which is required to be in line with the legislator’s purpose and be consistent with legal evaluation. The development of law beyond itself requires special considerations within the legal order and outside legal loopholes to prevent judicial dictatorship. The key between the development of legal activities is judges, which means that the comprehensive quality and professional ethics of judges can measure the quality and effectiveness of judicial activities, and also determine the initiative of judges in the legal process.
出处
《法学（汉斯）》
2023年第5期4252-4258,共7页
Open Journal of Legal Science
