关于利益衡量的两种知识——兼行比较德国、日本的民法解释学

德国的利益法学派所主张的作为补充法律漏洞方法的利益衡量和日本民法者所提出的利益衡量论有着很大的不同,属于两种不同的知识,但在我国却被不加区分地使用着。我国目前正展开对法学方法论的引入与讨论,究竟应该选择德国还是日本的进路,需要我们认真对待。

The Two Kinds of Knowledge about Balancing of Interests: Comparing Legal Interpretation in Germany and in Japan in the Meantime

There are many differences between balancing of interests which is used to make up the law's weaknesses by German interessenjurisprudenz and the one which is advanced by the researchers of civil law in Japan. These are two different kinds of knowledge, but in china, they are thought as the same one. At present, we are in the process of introducing and researching methodology of civil law. So, we must take seriously about which theory to choose above.