对“以事实为根据、以法律为准绳”原则的重新释读

在民事审判方式改革向纵深持续发展的情势下 ,对“以事实为根据、以法律为准绳”原则重新释读十分必要。作者认为 ,以事实为根据中的“事实”包括法律上的实体纠纷事实和程序上的事实。法律上的实体纠纷事实具有集客观性、正当程序性、主观性于一体的性征。而对以法律为准绳原则的奉行 ,要求我们特别关注法律的局限性与法官的能动性问题 ,探究有关法官基于自由裁量权补充发展法律及其与以法律为准绳的关系。以法律为准绳原则可以指引法官充分认识自由裁量权的性质并具有对法官能动司法过程的程序保障和规制的重要功能

A re-reading of the Doctrine of "Making the Fact As Foundation, and the Law As Criteron"

Under the circumstances of civil procedural reform going deep continuously, the author thinks that it is quite necessary to rethinking about the basic principle of basing on facts and taking the law as the criterion in trying civil cases. According to the author's opinion, “facts”, being as the bases in trying cases, should include the two parts: legal substantive dispute facts and procedural facts. The former has the characteristics of objectivity, due process and subjectivity. To follow the principle of taking the law as criterion, we should especially pay attention to the limitation of the written law and the activity of judges, research on the relationship between the discretion and aforesaid principle. This basic principle plays an important part in leading the judges to fully understand the nature of discretion and in procedural protecting during judges trying the cases in activity.