司法实践中,法官依据法律、斟酌情事进行自由裁量,一直是一个敏感的话题。尤其是在一些重大、新型案件的裁判上,法官裁判的思维进路受到社会各界广为关注。近一段时间,个别案件的判决引发各方争议,甚至广受诟病,原因固然是多方面的,但是法官在裁判方法上的偏差,或者说法官在行使自由裁量权时方法论上的失误,无疑是一个值得检讨的重要方面。在现代法治条件下,法官行使自由裁量权时必须遵守一定的规则,受到正确裁判方法的约束或指引。在这些“铁律”面前,法官的“自由”裁量其实是“不自由”的。就民事审判而言,法律推理的严密性、请求权基础的准确性、法律解释方法的妥当性,笔者认为应当是最为重要的三个问题。 Judicial practice, the judge according to the law, discretion, discretion, has always been a sensitive topic. Especially in the judgments of some major and new types of cases, the judge’s thinking path has drawn widespread public concern. In recent days, the judgment of individual cases has caused controversy and even widespread criticism among the parties for many reasons. However, the discrepancies in judges’ methodologies or the methodological errors of judges in exercising discretion are undoubtedly one Important aspects worth reviewing. Under modern conditions of the rule of law, judges must abide by certain rules when exercising their discretion and be bound or guided by the correct method of adjudication. In these “iron law” before the judge’s “free” discretion is “not free ”. As far as the civil trial is concerned, the strictness of legal reasoning, the accuracy of the basis of the right of claim and the properness of the method of legal interpretation should be the three most important issues.