摘要
中国学界在法律规则的逻辑结构主题上经历了数次范式转换，目前的代表性学说为“新三要素说”。这一学说的形成有其层层相因的发展脉络和合理性，但在理论上存在着重大缺陷，根本原因在于误识了逻辑结构理论所要解决的问题以及逻辑结构的性质。法律规则的逻辑结构学说属于法认识论，它要解决的是法律规则的形式、静态构成及其句法功能问题。新二要素说主张法律规则由构成要件和法律后果构成，满足了逻辑学说的基本标准，解决了过往理论的缺陷，实现了与法律推理的模式相衔接这一根本目标。
The paradigm on the topic of the logical structure of a legal rule has experienced several transitions in Chinese academia, and the dominant theory nowadays is the so-called ＂New Three-Ele- ments Doctrine＂. This theory has been developed in an unique sequence of thoughts with its own rea- sonableness. It converges with the ＂Two-Elements Doctrine＂ on the standpoint of legal concept, and keeps a relative great distance to the＂Three-Elements Doctrine＂, but also has some consensus with the latter. However, the ＂New Three-Elements Doctrine＂ has more defects than advantages. The ma- jor problem consists of two aspects. Firstly, the three elements in a legal rule, divided according to the ＂New Three-Elements Doctrine＂, do not form a firm logical relation. And this doctrine confuses the structure of a legal rule with the structure between different legal rules. Secondly, it reduces vari- ous types of legal rules into one single type and lets it be covered by the theory of logical structure. The grounds lie in that it mistakes the real problem the theory of logical structure aims to resolve, and hence the nature of logical structure. The theory of the logical structure of a legal rule does not belong to legal conceptualism, but locates in the area of legal epistemology, which mainly deals with problems in such fields as the form of a legal rule, its static constitution and syntactic （semantic） function. There are two possible new approaches as alternatives. The first tries to make a compromise in the old framework, i. e effect＂ this way or that, , modifies the meanings of ＂hypothesis＂, ＂behavioral model＂ and ＂legal then converts three elements into two elements. But this endeavor still has not avoided the spell of constructing logical structure of a legal rule with a substantial element-＂ con- duct＂. The other approach, which the author terms as the＂New Two-Elements Doctrine＂, disregards total old framework and attempts to build new elements and new relations between them. It claims that a legal rule is consisted of two elements, namely Tatbestand and basic standards of logic doctrine and overcomes most defects of old theories. What＇ s more, it a- chieves the fundamental aim of accordance with the model of legal reasoning, because the logical structure of a legal rule in view of the＂ New Two-Elements Doctrine＂ makes a subsumption smooth and appropriate, and gives a fundamental condition to correct or valid reasoning.
出处
《法学研究》
CSSCI
北大核心
2013年第1期66-86,共21页
Chinese Journal of Law
基金
2011年度教育部人文社会科学研究青年基金项目“规范、逻辑与法律论证”(11YJC820050)阶段性成果
关键词
法律规则
逻辑结构
法律推理
legal rule
logical structure
legal reasoning
