新《法官法》和《检察官法》之规范属性刍议

从法律规则的类型上看,我国《法官法》和《检察官法》所创设的规则,乃是确定并保障法官与检察官身份,以及要求法官和检察官按本法所界定的行为方式去从事执法活动的规则。在法学方法论上,此类规则属于典型的构成性规范。然而,大修之后的《法官法》和《检察官法》中依然存在着大量的引用性法条、复述性法条、规范性缺失法条及无头型法条,此等法条均不满足构成性规范的基本要件。这表明,尽管《法官法》和《检察官法》的此次修订是立志于"大修",但它们并没有摆脱传统的立法"宜粗不宜细"的思维惯性,并未真正达到大修之目标。故而,未来时机成熟时,应严格按照构成性规范的基本要求对之予以进一步的修订和完善。

On Normative Attributes of Revised Judges Law and Prosecutors Law

Viewed from the type of legal rules, the rules created by Judges Law and Prosecutors Law are the rules to determine and guarantee the identity of Judges and Prosecutors, and to require Judges and Prosecutors to engage in the law enforcement activities as defined by the Law. In legal methodology, such rules are typical constitutive norms. However, there are a large number of quotes articles, rehearsal articles, normative lack of regulations and no head regulations in Judges Law(Revised Draft) and Prosecutors Law(Revised Draft), which are drawn up by the Supreme People’s Court and the Supreme People’s Procuratorate. All these articles do not meet the basic requirements of the constitutive norms. This shows that the two revised laws that are determined to "overhauling" are still very rough, and have not been rid of the traditional principle of broad rather than detailed in legislation technique. Therefore, when the occasion is ripe, it should be further revised and perfected in strict accordance with the basic requirements of constitutive norms.