형사법에 나타나는 법관의 법형성의 원리와 양상 비판

Generally, it is commonly accepted that a judge’s forming a legal standard that are not provided in a statute is not allowed but for a exceptional case. Nonetheless, we cannot simply predicate the a judge’s real duty is never going outside of criminal statutes. Analogy that is the core mechanism of a judge’s forming a legal standard outside of a statute must rely on a universal concept. Those universal concepts, such as a purpose of law, a legal principle, a fundamental right, a whole legal order, show a high level of openness and flexibility of meanings. In this sense, to be a good forming of a legal standard, it should strike balances not only between universality and individual acceptability but also between consistency and contradiction. Furthermore, the restraining principles of forming a legal standard, such as, clarity, consistency and proportionality does not secure any fixed conceptual coordinates or grounds but is floating on the vast oceaning of legal meanings. To cope with injustice for the contemporary jurisprudence is to find out legal conceptions in the direction of supporting individual rights and intrests. Nevertheless, the abyss of the problem lurk under the fact that it is very hard to control the process of eradicating injustice through any perfect conceptual forms.