CAJ | 학술논문

虽然合宪性解释方法在概念上会存在些许差别，但其所遵循的合宪性推定逻辑是相通的，即都体现了司法权对立法权的谦抑。舍宪性解释方法中所含括的单纯解释规则，如果不与冲突规则在学理上加以区分，则很容易对合宪性解释产生认识上的偏差。目前合宪性解释方法所模本的欧陆经验，从源流上来说，最早其实可溯及至早期美国合宪性推定的理论与实践，并与回避宪法方法一脉相承。通过合宪性推定可以发现，合完性解释方法可以从宪法方法与法律方法两个层面展开。把握其内在理路及权力逻辑，方可使其具有本土可能性。
수연합헌성해석방법재개념상회존재사허차별，단기소준순적합헌성추정라집시상통적，즉도체현료사법권대입법권적겸억。사헌성해석방법중소함괄적단순해석규칙，여과불여충돌규칙재학리상가이구분，칙흔용역대합헌성해석산생인식상적편차。목전합헌성해석방법소모본적구륙경험，종원류상래설，최조기실가소급지조기미국합헌성추정적이론여실천，병여회피헌법방법일맥상승。통과합헌성추정가이발현，합완성해석방법가이종헌법방법여법률방법량개층면전개。파악기내재리로급권력라집，방가사기구유본토가능성。
Comparatively speaking, different jurisdictions may use different terms to express the Constitutional Avoidance Doctrine. To some extent, the doctrine follows the principle of presumption of constitutionality in the process of constitutional interpretation or statutory interpretation, which somewhat denotes the deference of judicial power to legislative power. However, as to the substance of the doctrine, we should distinguish between the interpretation rule which refers that relevant constitutional provisions are able to have direct effect on the statutory interpretation, and the conflicts rule which refers that the court should refuse to rule on a constitutional issue if the case can be resolved on a non-constitutional basis. Currently in Chinese academic circles, scholars emphasize too much on the interpretation rule, even arguing that Chinese courts are able to activate the constitutional application through this doctrine in the process of adjudication on general cases. This argument has distorted the essence of the doctrine to some extent, and needs to be clarified from theoretical lens. Originally speaking, the constitutional avoidance doctrine even in the context of European countries is from the practice of the United States. It is necessary to distinguish the doctrine at two distinctive levels. One is the application of the doctrine in the process of constitutional interpretation by the constitutional review organs~ the other is the application of the doctrine in the process of statutory interpretation by general courts. After that, there exists the possibility of transplanting and applying the doctrine in China either by the courts or by the future activated constitutional review organ.