民初選舉訴訟中的“法官造法”

民國初年乃是中國法律大變動的時期，由於國會立法成績有限，在司法與執法過程中存在很多法律漏洞；作為司法機關的大理院不得不通過抽象的判決例和解釋例來進行“司法續造”。針對選舉訴訟這一高度政治化的案件類型，大理院准用民事訴訟程式，通過行使終審權與司法解釋權規範了訴訟程式、澄清了選舉規則。在這個過程中，大理院頂住國會、行政機關與地方割據勢力的壓力，在兼顧人民的訴訟權利與選舉制度公正有效的同時，努力落實國家選舉法制的統一。據統計，在民國北京政府大理院2012件解釋例與3900餘個判決例中，涉及議員選舉糾紛的有50件司法解釋與72個判例要旨，由此可以分門別類地研究當時最高司法機關在相關領域的“法官造法”。

There were radical changes of the legal system in the early years of the Republic of China. Due to the limited legislative achievements of the parliament, there were many legal loopholes in the process of judicature and law enforcement. Therefore, as the Supreme Court, the Dali Court had to carry out judicial lawmaking through abstract case law and judicial interpretations. In the electoral lawsuits which were highly political issues, Dali Court standardized the judicial procedure and clarified the rules of the election by adjudication and judicial interpretation. And in this process, the Dali Court was under pressure from the Congress, the administration as well as the local separatists. While taking into account the rights of the people's litigation and the fair and effective election system, Dali Court tried to implement the unification of the legal system of the national election. Based on the study of 2012 judicial interpretations and more than 3900 abstract case laws of Dali Court in the period of Beijing government of the Republic of China, this article retrieves 50 judicial interpretations and 72 essentials of judicial precedent for the election disputes of the assemblymen, aiming to research the judicial lawmaking of the highest judicial organs.