民间法与裁判规范

民间法与裁判规范

Folk Law and Adjudicative Norm

    期刊名称：《法学研究》
    期刊年份：
    作者：谢晖
    单位：北京理工大学
    中文关键词：民间法;裁判规范;援引的裁判规范;构造的裁判规范
    英文关键词：folk law;adjudicative norm;the citation of adjudicative norm;the construction of adjudicative norm
    中文摘要：
    裁判规范是法官在司法中援引或运用一定规则以直接适用于个案的规范。裁判规范分为两种：一种是法官援引一定规范所直接形成的裁判规范；另一种是法官运用一定规范而构造的裁判规范。民间法作为法律渊源，既可以被法官直接援引作为裁判规范，也可以被法官作为构造裁判规范的“原材料”加以运用。民间法作为法律渊源有一些制约性条件，需要法官识别民间法，也给法官增加了论证义务，以便使民间法作为裁判规范或者以民间法为据构造裁判规范时，获得当事人及其他社会主体的接受。
    英文摘要：
    Judicature is a complex process in which judges need to construct adjudicative norms when facing difficult and complicated cases. There are two kinds of adjudicative norms. One is the adjudicative norms directly cited by judges. At this point, judges could cite the legal norms, or the customary norms (folk law), the jurisprudence or the other social norms when authorized by law. The other is the adjudicative norms constructed by judges. As to the relationship between folk law and adjudicative norms, it is in the narrow sense, that is, judges construct the adjudicative methods and norms under the spirit and principle of law by using their experience, intuition and rationality when they face the complex or difficult cases and could not apply the state law, legal doctrines, or other social norms directly.Being one kind of social norms, the folk law could be directly cited by judges as adjudicative norms and also could be applied by judges as primary material to construct the adjudicative norms. Whether folk law can be directly cited by judges as adjudicative norms depends on whether the legal norms are exhausted and whether it is authorized by law. Moreover, the parties should choose and accept the folk law and judges should give reasons for their direct citation. Still, such citation is limited in specific space and time, and also depends on the nature and function of folk law. When the folk law is used as primary material to construct the adjudicative norms, judges should take the responsibility of reasoning, be more creative, and take full account of the main parties and other social acceptability. Such construction is the creation of new law to provide guiding paradigm for precedent.Without a doubt, the folk law and the state law are pair of complementary but also competing and contradictory normal types. Therefore, if the folk law is invalid or expired, cannot allocate rights and duties, violate the spirit and principle of law, or is against civilization or humanity, it could not be cited as adjudicative norms or used as primary material to construct adjudicative norms.
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