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现行法律并未明确规定法与法之间抵触的判断标准,理论和实务也大多倾向于对抵触情形进行列举式描述。为了使抵触的判断标准更具操作性,从规范角度进行精细化建构尤为必要。法与法之间的抵触微观上是法的要素之间的抵触,法的要素包括法律概念、法律规则、法律原则,通过逻辑的整合,可以将法与法的抵触分为下位法规则与上位法原则的抵触、下位法规则与上位法规则的抵触。下位法应当遵循上位法的基本原则,但法律原则不应包括主观的立法者本意。对于不同位阶法律规则之间的抵触,法律规则逻辑结构仅可以作为抵触的抽象分类标准,至于具体的判断规则,仍需依据法律规范的内容种类进行类型化分析。
The current law does not clearly define the criterion of conflict between law and law. Most of the theories and practices tend to make an enumeration of the conflict. In order to make the judgment standard of conflict more operational, it is necessary to refine the construction from the norm. The conflict between law and law is the contradiction between the elements of law. The elements of law include the concept of law, the rules of law and the principle of law. By the integration of logic, the conflict between law and law can be divided into subordinate rules and superordinate The contradiction of the principle of law, the contradiction between the rule of lower law and the rule of higher law. The lower law should follow the basic principles of the upper law, but the principle of law should not include the subjective intention of legislators. As to the conflict between different levels of legal rules, the logical structure of legal rules can only be used as the abstract abstract standard of conflict. As for the specific rules of judgment, the type of legal rules still needs to be typed.