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法治原则要求法官依法司法,但随着社会的发展,单纯依靠制定法来治理社会已凸显不足。司法实践表明法官在裁判过程中不可避免的会遇到法律的冲突和漏洞,这就决定了法官所要发现的法应该具有更广泛的意义,不仅应从现行的制定法中发现法律,也应从其他社会规范中来发现,即法律的外部发现。在当前构建和谐社会、强调司法为民的背景下,如何通过法律的外部发现这一法律方法合法、合理的将民间规则运用在司法中定纷止争、使民间规则在司法中发挥作用是一个值得探讨的问题。这样的研究一方面拓展了法律方法的研究范围,另一方面也为民间规范对法治建设的意义开辟了途径。
The principle of the rule of law requires judges to follow the law, but with the development of society, the rule of law solely on the basis of statutory law has become obviously inadequate. Judicial practice shows that judges inevitably encounter legal conflicts and loopholes in the process of adjudication, which determines the law to be found by judges should have a broader meaning, not only from the existing statute law found, but also from other societies Norms to discover, that the law of external discovery. In the current context of building a harmonious society and emphasizing the administration of justice for the people, how to find out this legal method outside the law legally and reasonably, and how to apply folk rules in the judgments of the people so that civil rules play a role in the administration of justice Worth to explore the issue. On the one hand, this kind of research expands the research scope of legal methods, on the other hand, it opens up a way for the folk norms to mean the construction of the rule of law.