论《民法典》中绿色原则的司法适用

    Legal Logic of Judicial Application of Green Principle in Civil Code

    • 摘要: 绿色原则是一项新兴民事法律原则,其司法适用问题备受关注。绿色原则作为正确法原则介于自然法理念与法律规则之间,兼具自然法理念与实在法外壳。这导致绿色原则的司法适用具有复杂性,包含原则的权衡适用、原则对规则的诠释适用、作为规则的原则的涵摄适用三种适用类型。权衡适用时,绿色原则是通过权衡其与相冲突原则的分量,以确定适用与否以及适用的比重;诠释适用时,绿色原则是通过介入法律规则的涵摄过程,以绿色价值影响法律规则的诠释;涵摄适用时,绿色原则是被视作规则以填补法律漏洞,通过民法体系补足其法律后果完成适用。绿色原则作为当代市民社会在价值层面达成的绿色共识的凝练,将绿色价值理念与法律规则紧密连接,借助绿色原则之司法适用,可实现民法教义朝着绿色化更新迭代。

       

      Abstract: The green principle is a new civil law principle, and its judicial application has attracted much attention. As the principle of right law, the green principle lies between the idea of natural law and the rule of law, and has both the idea of natural law and the shell of positive law. As a result, the judicial application of the green principle is complicated, which includes three types of application: the trade-offs application of principle, the hermeneutic application of principle to rule and the subsumption application of principle as rule. For trade-off application, the green principle determines whether it is applicable or not and the proportion of application by balancing its weight with the conflicting principle. For hermeneutic application, the green principle influences the interpretation of legal rules with green value by intervening in the process of the subsumption of legal rules. For subsumption application, the green principle is regarded as a rule to fill the legal loophole and complete the application through the civil law system to compensate for its legal consequences. The green principle, as the condensation of the green consensus reached in the value level of contemporary civil society, closely connects the green value concept with legal rules, and realizes the updating and iteration of civil law doctrine towards green with the help of the judicial application of the green principle.

       

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