基於後果評價的法律適用方法

The Method of Legal Application Based on Consequential Evaluation

基於後果評價的法律適用是司法裁判的必要形式和具體方法，其邏輯機制在於裁決後果逆向地影響裁判依據的選擇。確需改變按照既定規則的法律推理及論證結構是基於後果評價的法律適用方法應用的條件，其旨在為疑難案件司法確立正當的裁判規範。司法裁決的抽象後果或稱“規範性後果”是法律適用通過後果評價而為合理裁判的可依賴後果。既定法秩序內的根據是法律適用後果評價實質衡量中具有優先性的理由，而既定法秩序外的根據以其屬性和功能對後果評價的實質衡量發揮著特殊作用。

The application of law based on consequential evaluation is a necessary form, also a specific method, in judicial adjudication, and its logic mechanism is that the consequence of judicial decision retroactively influences the choice of judicial basis. The necessity to change the legal reasoning based on the established rule and its argument structure is the precondition to apply the method of legal application based on consequential evaluation, which aims at establishing the justified norms for the judiciary in handling hard cases. The abstract consequence (also called 'norm consequence' ) of judicial decision is the dependable consequence for legal application to make a reasonable judgment by the consequential evaluation. The grounds in the existing order of the law are the preferential reasons in substantive measure about the consequential evaluation for legal application, and the grounds outside the existing order of the law have a special impact on substantive measure with their properties and functions.