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法官在司法的过程中,必然会对法律规范和案件事实做出创造性的解释,法律解释的创造性既有其优点,也不可避免有其缺陷和不足,即容易致使法官做出任意性的解释,这在“彭宇案”中就得到了明显的体现。因此,在承认法律解释创造性优点的同时也需要对缺陷其进行限制,结合我国的实际情况,法官在进行创造性解释的过程中不仅应恪守严格法治主义的立场,还必须参考法律职业共同体的意见和考虑案件可能带来的不利社会影响。
Judges in the process of justice, will inevitably make a legal interpretation of the legal norms and facts of the case, the creative interpretation of the law has both its advantages, but also inevitably has its shortcomings and deficiencies, that is easy to cause the judge to make arbitrary explanations, This is clearly reflected in the “Peng Yu case.” Therefore, while acknowledging the creative advantages of legal interpretation, it also needs to limit the defects. According to the actual situation in our country, judges should not only strictly abide by the position of strict legalism, but also must consult the opinions of legal professional community Consider the possible adverse social impact of the case.