說理或詭辯──判決引用外國法的爭論

Reasoning or Sophistry： The Debate over the Use of Foreign Law in Judicial Decisions

判決引用外國法做為解釋本國法的論據，在美是高度爭議的問題。我國法院亦常引用外國法支持判決的結論，雖未引發論辯，但判決引用外國法所引起的民主正當性問題，選擇適用問題及理解轉化等問題，仍然存在，值得深入探討。本文就美國法界的論辯，及我國司法機關用外國法的案例加以討論分析。本文認為，比較法做為一種法律解釋方法，有其價值，不應否定其正當性。判決可以引用外國法，但方法應力求精緻。 The use of foreign law by the courts in interpreting domestic law has been an issue of heated debates in the United States. It is a commonplace for the courts in Taiwan to make references to foreign laws. Although the practice has not stirred serious debates, problems of democratic legitimacy, cherry picking and misuse arising from citing foreign law in judicial decisions do exist, and deserve careful analyses. This article first describes the debates in the United States, and then discusses relevant cases and problems in Taiwan. This article concludes that the courts’ use of foreign law is legitimate, but the method of use needs to be more refined and sophisticated.

The use of foreign law by the courts in interpreting domestic law has been an issue of heated debates in the United States. It is a commonplace for the courts in Taiwan to make references to foreign laws. Although the practice has not stirred serious debates, problems of democratic legitimacy, cherry picking and misuse arising from citing foreign law in judicial decisions do exist, and deserve careful analyses. This article first describes the debates in the United States, and then discusses relevant cases and problems in Taiwan. This article concludes that the courts’ use of foreign law is legitimate, but the method of use needs to be more refined and sophisticated.