疑难案件的复杂性使得法官如果严守概念法学,将有碍公正的实现且社会效果较差。同时由于疑难案件往往是法律没有明确规定,需要通过法律方法进行创造性适用,这就需要法官能动司法。而创造性适用使得法律适用方法的异化有了存在的空间,小部分法官有可能会把法律方法变为其谋取私利的工具。因此,有必要赋予法官在裁判疑难案件中一定限度的司法能动性的同时,通过某些的程序和方法加以必要的限制。 The complexity of difficult cases makes judges obey the concept of jurisprudence, will impede the realization of fair and less social effect. At the same time, difficult cases are often not clearly defined by law and need to be creatively applied through legal methods, which requires judges to be able to exercise judicial power. However, there is room for alienation of the law applicable method by creative application, and a small number of judges may turn the legal method into a tool for their personal gain. Therefore, it is necessary to give the judge the necessary restrictions through certain procedures and methods, while judging a certain degree of judicial initiative in difficult cases.