民国时期,商贸交易日趋复杂,面对多变之社会现实,实证法规难期完美,司法实践中法官时常要面对无明确条文规制之案件。在禁止司法沉默的原则下,法官屡屡借助商会组织对商业惯例进行查明,由此在案件事实中发现法律。在法社会学看来,这其实就是通过把事实问题转化为法律问题来形成裁判规范的法律发现过程。 During the period of the Republic of China, business transactions became more and more complicated. In the face of the changing social reality, the difficult times of the substantive laws and regulations were perfected. In judicial practice, the judges often had to face cases without clear rules and regulations. Under the principle of prohibiting judicial silence, judges often use commercial organizations to identify business practices, thereby finding laws in the facts of the case. In the view of sociology of law, this is actually a process of legal discovery that forms the norm of adjudication by transforming factual problems into legal problems.