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裁判方法固然能促进法治的发展,但也有可能摧毁法治的根基:以形式法治论为导向的裁判方法可能消解法治的权威,而以实质法治论为导向的裁判方法则可能瓦解法治的基本宗旨。因此,在维护法治能真正得以实现的基本前提下,能动主义的裁判方法固然重要,但传统的逻辑涵摄裁判方法不能丢;同时,现代法治社会公认的基本价值不能丢,应该以其作为衡量裁判方法运用是否得当的一项坐标。
Although the method of refereeing can promote the development of the rule of law, it is also possible to destroy the foundation of the rule of law. The method of refereeing by the form of rule of law may eliminate the authority of the rule of law, while the method of refereeing by the principle of the rule of law may undermine the basic principle of the rule of law. Therefore, under the basic premise of safeguarding the rule of law can be realized truly, the method of the referee of activeism is of course important, but the traditional logic of the refereeing method can not be discarded; meanwhile, the recognized basic value of the modern rule of law society can not be discarded and should be measured by it Referee method used is a proper coordinate.