The Study On The "Judge-made Law" Of The Federal Supreme Court Of Germany

In the traditional jurisprudence textbooks,"judge-made law" is regarded as a distinctive feature that distinguishes the common law system from the continental law system,while in the countries with statute law as the center,codification seems to be the only way to make law.However,when it comes to the practice of law,this opposition obviously underestimates the commonality of the development of law.Both the "legislation" of parliament and the “judgemade law” can be a powerful tool to serve the construction of the rule of law after institutionalized and standardized.As the two major legal systems learn from each other,breaking the closed view of the law source has become a consensus among developed countries.From the perspective of the German Federal Supreme Court,this article explores the significance of "judge-made law" in written law countries.In addition,China's traditional legal system is also dominated by written law,and this paper will provide some reference for improving the rule of law in socialism with Chinese characteristics.The paper is divided into four parts.The first chapter summarizes the connotation of "judge-made law",and defines the context of "judge-made law" in this paper based on the relevant research results at home and abroad.The second chapter mainly introduces the "lawmaking" activities realized by the German federal Supreme Court,including its historical background,specific implementation paths and typical cases in the field of department law,and confirms the existence of “judge-made law” in Germany.The third chapter demonstrates the rationality of "judge-made law" from three aspects: prohibition of refusal to adjudicate,dynamic rule of law,and substantial rule of law.It is pointed out that the operation of the legal system,the settlement of frontier disputes,and the realization of fairness and justice are inseparable from the continuation of the law by the initiative of judges.It is not only an expedient to solve difficult cases,but also a strategy and wisdom to get rid of the dilemma of the rule of law.On the basis of examining China's traditional legal system,chapter four puts forward some concrete suggestions,such as standardizing the judicial interpretation and improving the case guidance system,to make up for the deficiency of law making by the judicial organs of our country.Finally,by summarizing the full text,the author extracts the characteristics and functions of "judge-made law" in the countries of statute law,and emphasizes that "judge-made law" does not have the strict legal system attribute.China can combine its own system advantages to give full play to the role of judicial organs in unifying the application of law and promoting the development of law.