案例公开视角下我国司法造法的理论逻辑与路径优化

The Theoretical Logic and Path Optimization of China’s Judicial Law-Making from the Perspective of Case Disclosure

摘要: 在新型权利保护需求与立法滞后的矛盾愈发明显的背景下，司法造法作为法官填补法律漏洞、实现个案正义的弹性机制，以其理论逻辑与实践形态成为法治建设的重要议题。本文以案例公开制度为切入视角，系统探讨中国司法造法的核心界定、与案例公开的互动机理及实践困境，研究发现司法造法需以法院层级适配性、法律漏洞客观性及效力边界性为前提。案例公开对其既有正向赋能，如强化正当性、促进统一适用、提升司法能力；亦存在潜在制约，如抑制能动性、限制造法经验积累、导致规则片面化。结合“网库并行”的案例公开实践，本文提出三重规制路径：优化公开机制以留足造法空间、明确造法边界以强化权力制衡、提升法官能力并构建职业保障。本研究旨在厘清司法造法的合理边界，为平衡法律稳定性与社会适应性、推动中国特色社会主义司法实践的发展提供理论与路径参考。

Abstract: Against the backdrop of increasingly prominent contradictions between the demand for protecting new rights and the lag of legislation, judicial law-making, as a flexible mechanism for judges to fill legal loopholes and achieve individual case justice, has become a key issue in the construction of the rule of law, with its theoretical logic and practical forms. This paper takes the case disclosure system as an entry point to systematically explore the core definition of China’s judicial law-making, its interaction mechanism with case disclosure and practical dilemmas. The study finds that judicial law-making must be premised on the adaptability of court levels, the objectivity of legal loopholes and the boundary of effectiveness. Case disclosure has both positive effects, such as enhancing legitimacy, promoting unified application and improving judicial capacity and potential constraints, such as inhibiting initiative, restricting the accumulation of law-making experience and leading to one-sided rules. Combined with the “network-database parallel” case disclosure practice, this paper proposes three regulatory paths: optimizing the disclosure mechanism to leave sufficient space for law-making, clarifying the boundaries of judicial law-making to strengthen power checks and balances and improving judges’ law-making capabilities while building professional protection. This research aims to clarify the reasonable boundaries of judicial law-making, providing theoretical and path references for balancing legal stability and social adaptability and promoting the development of socialist judicial practice with Chinese characteristics.