The Judge - Made Law

Judge Law-Making is a creative activity of making concrete legal rules for solution of concrete case and dispute under the situation of existed legal norm missing in the judicial process. The limitation of the statutory law and the judge's duty of do not rejecting referee is important reason of the judge Law-Making's existence and development. Judge Law-Making is long-standing in Common Law Legal System countries, and its theory and practice is relatively developed and perfect after a long-term historical development. However, Judge Law-Making experienced an approval developing process from strict prohibits to gradual accepts in Civil Law Legal System countries. Judge Law-Making plays an important role in balancing relations between legislation and judicature, in the promotion of law development and the consummation as well as the solution of application of law difficult in social reality. Judge Law-Making is not the activity which judge carries on at will, but is a complex process, which follows the specific method and the way and carries on legal interpretation, complementarities of the law's gap and legal reasoning.Our country is a statutory law country and the statutory law is our country's main source of law. Although our country's legislation work has made a significant development and the socialist laws system consummates unceasingly since the Reform and Open Policy, it is still our country fact that legal gap exists massively in legal area. However, the dispute and contradictory which happens in economical and social life do not stop occurring. Along with our country economy and society's unceasing development, more and more unprecedented cases and disputes enter judge's field of vision gradually. Although Judge Law-Making is not stipulated explicitly by our country's legal system, judge makes the function of making law in varying degree in judicial practice. Judge Law-Making has the existence and development necessity and possibility in our country. Doing legal interpretation and creating "legal precedent" is Judge Law-Making's main form in our country. Although our country's Judge Law-Making plays an important role in completing legal gaps and adjusting social relations, the question and the flaw also exist as well. According to questions which exist in our country's Judge Law-Making, we can not forbid and cancel it, but should consummate and develop it gradually. Only then like this, can fit to our country's economy and society development tendency and the rule of law development.This article has adopted the research technique of Appling theory to reality, Comparative Law and Sociology of Law, and has done a systematical analysis and research on theory questions of Judge Law-Making's historical development in overseas, the meaning, way, method of Judge Law-Making and so on. On the base of theory research, this article also raises own ponder on the question of the situation of Judge Law-Making in our country's judicial practice, problems, and suggestions to consummate our country's Judge Law-Making and so on.