法官釋法造法的案例思考

摘要

According to Article 45 of the Legislation Law of China, the power of legal interpretation belongs to the Standing Committee of the National People's Congress. The Supreme People's Court only formulates judicial interpretations for issues related to the application of laws, and regularly publishes guiding cases to conduct legal interpretation and legal development. During the process of adjudicating cases, judges need to conduct similar case searches and abide by the relevant regulations on consistency review of similar cases. However, in practice, there is a divergence among judges in handling cases. To achieve the unity of judicial and social effects and meet the justice demands of legal professionals, if there are legal loopholes, judges will inevitably make prudent decisions and, when necessary, carry out legal development or use some technical means to achieve the purpose of law-making in a disguised way. In domestic judicial practice, the problem of different judgments for similar cases is relatively prominent, and the reasons are multi-faceted. From the perspective of the justice of law, case adjudication is a comprehensive process. The value judgments of fairness, justice, equality, and balance pursued by the justice of law will inevitably influence the judgment of the presiding judge under the influence of specific factors. From different perspectives such as individual case factors, evidence presentation, and compliance with the duty of good faith, there are no absolutely identical cases. We should encourage judges to engage in legal development while avoiding them becoming mere legal automatons. At the same time, we should also pay attention to the systematic nature of legal interpretation and legal development to prevent the temporary purposes of administrative control from undermining the predictability and stability of the law.