论文部分内容阅读
法律漏洞的存在具有必然性,因而司法过程中法官造法就存在必要性。但就英美法系和大陆法系,以及中国现状而言,法官司法中对法律漏洞的填补存在很多差异。法社会学代表人物卡多佐的《司法过程的性质》,1给我们提供了很多理论层面的思考和司法实践路径的参考;但对其理论借鉴学习的过程必须要以我国司法环境为基础。
The existence of legal loopholes is inevitable, so there is a need for judges to make laws in the judicial process. However, there are many differences in filling legal loopholes in the judiciary’s judiciary in Anglo-American legal systems and civil law systems as well as in the current situation in China. The “nature of the judicial process,” Cardozo, the representative of Sociology of Law, provides us with a lot of references for theoretical thinking and judicial practice. However, the process of drawing lessons from his theory must be based on the judicial environment of our country.