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从1980年代至今,我国法律渊源概念研究大致经历了立法立场的法律渊源(法的形式)、司法立场的法律渊源(法官法源)两个发展阶段。立法立场的法律渊源是制定法的形式,是法官裁判的合法根据。由于学者在立法立场上对法律渊源实质意义的关注,引起了学界对法律渊源与法的形式的关系讨论,后经司法立场上的法律渊源理论研究,从法官不得不适用非制定法规范作为裁判根据的角度,使法律渊源的实质意义和功能得到了彰显。因而司法立场的法律渊源包括制定法和作为裁判根据的非制定法理由。研究法律渊源理论,对于克服法律的僵化性,拓展形式合法性范围,使法律渊源呈现出多样化形式具有重要意义。
From the 1980s to the present, the study of the concept of legal origin in our country has generally gone through two stages of development: the legal origin of the legislative position (the form of law) and the legal origin of the judicial position (the legal source of the judge). The legal origin of the legislative position is the form of statute, which is the legal basis for the judge’s judgment. Due to the fact that scholars pay attention to the substantive meaning of legal sources from the standpoint of legislation, scholars have been discussing the relationship between legal sources and the forms of law. After studying the legal origin theory from the judicial standpoint, scholars have to apply non-statutory norms as referees According to the angle of view, the substantive meaning and function of legal origin have been highlighted. The legal origins of the judicial position thus include the statute of law and the non-statutory ground on which the judgment is based. Studying the legal origin theory is of great significance in overcoming the rigidity of law, expanding the scope of the formal legitimacy and making the source of law appear diversified.