合同解释中的司法能动与克制

法官对合同的解释无法脱离其能动性,而主观性的解释须以客观性为目的。当法官在合同解释出现障碍时应恪守两个标准：理性第三人标准和社会公共利益标准。同时,必须对法官的能动性予以下列限制：法官在适用理性第三人标准时,应尽量避免以所谓的＂理性第三人＂之名而作出偏离缔约人真意的解释;法官在合同解释中的自由裁量权要受合同解释规则、合同文本内容、法官职业共同体之规则、公平、正义、诚信等基本原则的限制。

The Judicial Activity and Restraint in the Interpretation of Contracts

The judge can＇t interpret a contract without his judicial activity, but the subjective interpretation must be aimed to achieve objectivity. Therefore, the judge should explain contracts according to the following two principles. First, he should take private interests as the standard and make the judgment in terms of a rational third party. Second, he should take the social public interests as the standard and make the judgment based on the principles of equity, justice and honesty. At the same time, the judge＇s activity should be restricted as follows. First, the judge should avoid giving an interpretation deviated from the meaning of the contractors as he can when applying the standard of a rational third party. Second, the discretionary powers of a judge on interpreting the contract should be restricted by contract interpretation rules, contract contents, judge federation rules and the principles of equity, justice as well as honesty.