司法解释的建构理念分析以商事司法解释为例

在当前的司法解释形成过程中,存在一些值得注意的制度建构理念与方式,如过多地基于推理启动具体的司法解释形成过程,先创设"立法政策"然后顺此制定司法解释,试图通过司法解释实现社会利益一般调整却超越其本身的权限与能力等等。这些做法影响具体司法解释的制度生长趋向与内容选择,并导致司法解释的定位逾矩与功能紊乱。为完善司法解释形成机制以确保司法解释优化质量,须强调基于审判经验启动具体的司法解释的形成过程,以顺应立法政策作为具体司法解释的政策取向原则,以实现法律的技术完善作为具体司法解释的建构重心。

Analysis of the Constructing Thoughts of Judicial Interpretation

In current judicial interpretation making process,there exists some thoughts and methods of system construction we should pay attention to.Firstly,the initiation of making a specific judicial interpretation may be based on inference or on experiences.Nowadays,the former becomes the main decisive basis in the formation of judicial interpretation,which is the logic reason of the judicial interpretation having shortcomings and being criticized.Only when the initiation on inference is replaced by the initiation on experiences in the formation of judicial interpretation,can the people’s courts exert their advantages in judicial experiences and elevate the constructing quality of judicial interpretation. Secondly,according to the nature and traits of judicial interpretation,the value-orientation of judicial interpretation should accord with that of the legislative policy,but in the practices of the commercial law judicial interpretations,judicial policy is formed independent of the legislative policy and embodied in the specific judicial interpretations.The creation of policy in the forming process of judicial interpretation not only exceeds the capacity of courts but also hurdles the normal operation of social mechanisms. Thirdly,from the perspective of constructing method,the forming process of judicial interpretation may have different preferences for the method of interest adjustment or for the method of technological perfection.If particular stress is paid on interest adjustment,a standpoint of interest inclination is easy to be settled beforehand,which will easily lead to the result of the interest adjustment of the judicial interpretation exceeding the scope set by legislation.Thus judicial interpretation should lay particular stress on the technological perfection of legal text,that is,to provide the existing law with clear normal content,proper interest disposal,and effective regulating function and applicative mechanism. To perfect the forming mechanism and insure the quality of judicial interpretation,the initiation of its forming process should be based on judicial experiences,its policy orientation should accord with the legislative policy,and its construction should pay more attention to the technological perfection of law.