論法律解釋中的立法者原意
發(fā)布時間：2019-05-16 06:31
【摘要】：本文以對法律解釋中立法者原意的批判為核心,并且全文旨在說明一個問題:即盲目遵循立法者原意為什么是不正當?shù)摹Ｎ恼乱詫γ绹鴳椃ń忉屩械脑贾髁x理論研究為背景,通過對立法者原意解釋諸種變體的總結(jié)和梳理,從中汲取關(guān)于同樣適用于法律解釋中立法者原意的營養(yǎng),分析在法律解釋中運用立法者原意存在的相關(guān)問題。前三部分通過對立法者原意解釋的研究對象、概念界定、基本觀點等基礎(chǔ)理論研究后,重點從技術(shù)層面和規(guī)范層面兩個方面,逐步論證立法者原意是否客觀存在以及存在的形態(tài)、立法者個人意愿如何匯成統(tǒng)一的機構(gòu)原意、立法原意解釋結(jié)論何以不具有正當性等問題。在全面細致地分析了為什么在法律解釋中不應(yīng)該盲目遵循立法者原意的探討后,通過對德沃金法律假說理論的深入分析,最后對法律解釋中其他的可行性道路進行了進一步探討。在對立法者原意的技術(shù)性批判方面,通過對個體立法者原意和集體立法者原意的批判,重點探討了立法者原意本身是否存在以及立法者原意匯集的可能性和途徑,通過論證筆者承認立法者原意是客觀存在的,但是筆者所承認的立法者原意的真實存在并不是原旨主義者通常所理解的那樣:認為立法者原意是事實性的、是解釋的唯一指南、是民主的要求、是不帶有個人價值的最客觀公正的法律解釋方法。我們所承認的立法者原意必須要通過一種道德推理去論證、要通過正確的民主理論來進行構(gòu)建才能夠得出,這時存在的立法者原意一定是帶有價值性的。同時我們發(fā)現(xiàn)虛構(gòu)的立法者原意同樣是事實性的,基于虛構(gòu)的立法者原意的解釋方法其正當性是值得質(zhì)疑的。對于立法者原意規(guī)范層面的批判,筆者首先從立法者原意論的正當性基礎(chǔ)出發(fā),從真正的民主理論開始分析,論證以"民主理論"為基礎(chǔ)的立法者原意理論的正當性及其批判。同時通過審美假說理論進一步引出法律是什么:法律絕不是統(tǒng)治階級壓迫另一個階級的工具,法律從本質(zhì)上來講是政治性的,法律是與公共權(quán)力的使用相關(guān)。通過對法律概念、憲政概念的分析從而提出德沃金的法律假說理論,即在法律領(lǐng)域,法律是要保障人人平等,是通過限制公權(quán)力的行使來追求公平正義,進行法律解釋活動為的就是實現(xiàn)這樣的法律功能,而不是為了避免解釋者在解釋法律時加入個人價值判斷而找到一個所謂的最客觀的解釋方法,從而盲目的遵循立法者原意。通過對法律假說的論證以及對立法者原意理論的解構(gòu),筆者嘗試通過對抽象意圖和具體意圖的區(qū)分,探尋出抽象意圖意義上的立法者原意的替代性方法,從而進一步強調(diào)法律的統(tǒng)治不是一個人統(tǒng)治所有人,不是已經(jīng)死去的立法者統(tǒng)治世代的后人,法律是不同世代人合作的產(chǎn)物,我們需要參考過去立法者的原意,但是立法者原意的解釋方法絕不具有壟斷性。最后,通過這樣的分析從而進一步探尋出法律解釋的第三條道路,這是一種優(yōu)越于立法者原意解釋方法的新路徑,在這條道路上,法律解釋者在法律假說之下不得不運用價值判斷,同時得出的解釋結(jié)論又是客觀的,這種價值判斷不是將解釋者的個人主觀價值判斷加進去,更不是解釋者道德性的個人評價,而是當法律解釋者面對法律時以一種法律假說去看待法律。
[Abstract]:This paper is at the core of the criticism of the meaning of the legislators in the interpretation of the law, and the full text is to explain a question: blindly following the meaning of the legislators' original intention. Based on the study of the fundamentalism in the interpretation of the American Constitution, the author draws a summary and a comb of the variations of the law by means of the intention of the legislators, and draws on the nutrition which is equally applicable to the original meaning of the legislators in the interpretation of the law. The analysis of the relevant problems in the legal interpretation of the use of the meaning of the legislators. The first three parts, through the research object, concept definition, basic point of view and other basic theories, which are intended to be interpreted by the legislators, focus on the two aspects of the technical level and the normative level, and gradually demonstrate the existence and the existence of the legislators' intention. The legislative intent of the legislative intent is to explain why the legislative intent of the legislators is not justified. After a thorough and detailed analysis of the reason why the legal interpretation should not follow the original intention of the legislators, the author further discusses the other feasible ways in the interpretation of the law through an in-depth analysis of the theory of the German legal hypothesis. In the technical critical aspect of the original intention of the legislators, through the criticism of the original intention of the individual legislators and the original intention of the collective legislators, the author has focused on the existence of the original intention of the legislators and the possibility and means of the intention of the legislators. By proving that the author has admitted that the original intention of the legislator is objective, the real existence of the original intention of the legislator, which is recognized by the author, is not generally understood by the fundamentalists: it is the fact that the legislators are intended to be factual and the only guide to the interpretation is the requirement of democracy. It is the most objective and fair legal interpretation method without personal value. The legislators that we have admitted must have to go through a moral reasoning to prove that the construction of the correct democratic theory can lead to the conclusion that the existing legislators have to be of value. At the same time, we have found that the original intention of a fictitious lawmaker is also factual, and its validity is questionable based on the interpretation of the original meaning of the fictitious lawmaker. On the basis of the legitimacy of the original intention of the legislators, the author first starts the analysis from the true democracy theory, and proves the legitimacy and the criticism of the theory of the original intention of the legislators based on the "theory of democracy". At the same time, the law is further drawn through the theory of the aesthetic hypothesis: the law is not the tool of the ruling class to oppress another class, the law is political in nature, and the law is related to the use of the public power. By analyzing the concept of the law and the analysis of the concept of the constitutional government, the author puts forward the theory of the legal hypothesis of DeVaukin, that is, in the field of law, the law is to guarantee the equality of all, and to pursue the fairness and justice through the restriction of the exercise of the public power, and the legal interpretation is the realization of such a legal function. Rather than to avoid the interpretation of the interpretation of the law, the author finds a so-called most objective interpretation method, so as to blindly follow the meaning of the legislators. Through the demonstration of the legal hypothesis and the deconstruction of the theory of the original intention of the legislators, the author tries to find out the alternative method of the legislator's original intention in the meaning of the abstract intention through the distinction between the abstract intention and the specific intention, thus further emphasizing that the rule of law is not a rule for all, The law is the product of the cooperation of different generations, and we need to refer to the original meaning of the past legislators, but the method of the interpretation of the original intention of the legislator is in no way monopolistic. Finally, through such an analysis, the third path of legal interpretation is further explored, which is a new path that is superior to the method of interpretation by the legislators, on which the legal interpreter has to make use of the value judgment under the legal hypothesis, At the same time, the conclusion of the interpretation is objective, which is not to judge the individual's subjective value and not to explain the personal evaluation of the person's moral character, but to view the law with a legal hypothesis when the legal interpreter is facing the law.
【學(xué)位授予單位】：北方工業(yè)大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D901
本文編號：2478088
[Abstract]:This paper is at the core of the criticism of the meaning of the legislators in the interpretation of the law, and the full text is to explain a question: blindly following the meaning of the legislators' original intention. Based on the study of the fundamentalism in the interpretation of the American Constitution, the author draws a summary and a comb of the variations of the law by means of the intention of the legislators, and draws on the nutrition which is equally applicable to the original meaning of the legislators in the interpretation of the law. The analysis of the relevant problems in the legal interpretation of the use of the meaning of the legislators. The first three parts, through the research object, concept definition, basic point of view and other basic theories, which are intended to be interpreted by the legislators, focus on the two aspects of the technical level and the normative level, and gradually demonstrate the existence and the existence of the legislators' intention. The legislative intent of the legislative intent is to explain why the legislative intent of the legislators is not justified. After a thorough and detailed analysis of the reason why the legal interpretation should not follow the original intention of the legislators, the author further discusses the other feasible ways in the interpretation of the law through an in-depth analysis of the theory of the German legal hypothesis. In the technical critical aspect of the original intention of the legislators, through the criticism of the original intention of the individual legislators and the original intention of the collective legislators, the author has focused on the existence of the original intention of the legislators and the possibility and means of the intention of the legislators. By proving that the author has admitted that the original intention of the legislator is objective, the real existence of the original intention of the legislator, which is recognized by the author, is not generally understood by the fundamentalists: it is the fact that the legislators are intended to be factual and the only guide to the interpretation is the requirement of democracy. It is the most objective and fair legal interpretation method without personal value. The legislators that we have admitted must have to go through a moral reasoning to prove that the construction of the correct democratic theory can lead to the conclusion that the existing legislators have to be of value. At the same time, we have found that the original intention of a fictitious lawmaker is also factual, and its validity is questionable based on the interpretation of the original meaning of the fictitious lawmaker. On the basis of the legitimacy of the original intention of the legislators, the author first starts the analysis from the true democracy theory, and proves the legitimacy and the criticism of the theory of the original intention of the legislators based on the "theory of democracy". At the same time, the law is further drawn through the theory of the aesthetic hypothesis: the law is not the tool of the ruling class to oppress another class, the law is political in nature, and the law is related to the use of the public power. By analyzing the concept of the law and the analysis of the concept of the constitutional government, the author puts forward the theory of the legal hypothesis of DeVaukin, that is, in the field of law, the law is to guarantee the equality of all, and to pursue the fairness and justice through the restriction of the exercise of the public power, and the legal interpretation is the realization of such a legal function. Rather than to avoid the interpretation of the interpretation of the law, the author finds a so-called most objective interpretation method, so as to blindly follow the meaning of the legislators. Through the demonstration of the legal hypothesis and the deconstruction of the theory of the original intention of the legislators, the author tries to find out the alternative method of the legislator's original intention in the meaning of the abstract intention through the distinction between the abstract intention and the specific intention, thus further emphasizing that the rule of law is not a rule for all, The law is the product of the cooperation of different generations, and we need to refer to the original meaning of the past legislators, but the method of the interpretation of the original intention of the legislator is in no way monopolistic. Finally, through such an analysis, the third path of legal interpretation is further explored, which is a new path that is superior to the method of interpretation by the legislators, on which the legal interpreter has to make use of the value judgment under the legal hypothesis, At the same time, the conclusion of the interpretation is objective, which is not to judge the individual's subjective value and not to explain the personal evaluation of the person's moral character, but to view the law with a legal hypothesis when the legal interpreter is facing the law.
【學(xué)位授予單位】：北方工業(yè)大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D901
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