科学法主义及其对法律解释过程的影响

A. Shevchenko, V. Antoshkina
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引用次数: 1

摘要

本文概述了理解科学和法律主义及其构成特征的主要途径,以及对法律解释过程的影响。作者指出,科学和法律学说不仅定义了解释法律文本的工具和方法,而且还形成了立法者在制定法规时所使用的定义、类别、概念和结构,而法律主体必须理解这些法律行为中所包含的规范的真正含义并在实践中加以实施。重点介绍了不同法系司法解释中理论渊源使用的特殊性。确定了理论解释的特点、客观化形式及其与司法解释的联系。乌克兰宪法法院和最高法院特别注意在法律解释中使用理论条款。概述了在司法活动中使用理论解释结果的主要形式:科学咨询委员会的运作,其成员就复杂的法律问题提供意见;在现行立法规定的某些案件中,由法律领域的专家参与法院诉讼。值得注意的是,在法院审理案件期间,在形成法律立场的同时,有可能参考乌克兰权威法律学者的意见,这对于国内法律制度来说是不典型和不可接受的。值得注意的是,许多具有学术学位和头衔的权威律师、科学家也从事科学活动,他们曾担任并仍在担任法官,特别是乌克兰宪法法院的法官。这种做法特别有价值,因为法官能够在司法活动过程中应用他/她的科学工作成果来解释法律,同时在科学研究中运用他/她的实践经验。本文的作者涵盖了与“司法理论”的使用和“例外法律问题”的解决有关的问题,这对国内法理学来说是相对较新的。这些概念与法律学说的相互联系是确定的。本文认为,虽然现行立法规定了在执法实践中运用理论条款和理论解释结果的某些方式,但这一过程还不够完善,需要进一步澄清。关键词:科学法律主义,法律解释,理论解释,司法理论,例外法律问题。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
The scientific-legal doctrine and its influence on the law interpretation processes
The proposed paper outlines the main approaches to understanding of the scientific and legal doctrine and its constitutive features, as well as the influence on the law interpretation processes. The authors note that the scientific and legal doctrine not only defines the toolkit and approaches to the interpretation of legal texts, but forms the definitions, categories, conceptions, constructions which are used by legislators in creating regulations and by subjects of law which have to understand the true meaning of norms contained in such legal acts and implement in practice. The main provisions concerning the peculiarities of the doctrinal sources usage while judicial interpretation in different legal families are highlighted. The characteristic features of doctrinal interpretation, forms of its objectification and interconnection with judicial interpretation are determined. Particular attention is paid to the usage of doctrinal provisions in the legal interpretation by the Constitutional Court of Ukraine and the Supreme Court. The main forms in which the results of doctrinal interpretation are used in judicial activity are outlined: the functioning of scientific advisory councils, whose members provide their opinions on complex legal issues; involvement of an expert in the field of law to the court proceedings in certain cases provided by the current legislation. It is noted that during the court hearing of the case while the formation of a legal position the possibility to refer to the opinion of authoritative Ukrainian legal scholars is not typical and acceptable for the domestic legal system. It is noted that many authoritative lawyers, scientists with academic degrees and titles, who are also engaged in scientific activity, have worked and still work as judges, especially of the Constitutional Court of Ukraine. This practice is especially valuable because a judge is able to apply the results of his/her scientific work in interpreting the law in the process of judicial activity and at the same time to use his/her practical experience in scientific research. The authors of the paper cover issues related to the use of «judicial doctrines» and the solution of «exceptional legal issues», which are relatively new to domestic jurisprudence. The interconnection of these concepts with legal doctrine is determined. It is established that although the current legislation provides for certain ways of using doctrinal provisions and the results of doctrinal interpretation in law enforcement practice, but this process is not developed enough and needs further clarification. Keywords: scientific-legal doctrine, legal interpretation, doctrinal interpretation, judicial doctrines, exceptional legal problem.
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