由于法律理论缺乏司法义务的概念,这导致我们的裁判实践中存在一种普遍谬误,即主张既有法律已无助于疑难案件的裁判,于此情形法官应诉诸法律之外的政治、经济、道德等非法律性标准进行裁判。在绝对的司法义务、适度的司法义务以及绝对的道德义务中,适度的司法义务相对较为可取,它包含不得拒绝裁判、以依法裁判为原则以及为裁决提供论证三个层次的内容,同时兼顾了裁判受规范拘束与实现个案正义。为推进和落实这种司法义务,需要重整传统的法律渊源理论,尤其是要发掘原则以及法秩序等重要的元素。 Due to the lack of legal doctrine, the concept of judicial obligation leads to a common fallacy in our judicial practice, that is, the assertion that the existing laws have not helped to resolve the difficult cases, the judge should resort to politics and economy other than law , Moral and other non-legal standards for referees. In the absolute judicial obligation, the moderate judicial obligation and the absolute moral obligation, the moderate judicial duty is relatively preferable. It includes the three aspects of refusing to refute the judgment, according to the principle of ruling by law and providing the evidence for the ruling, taking into account The referee is regulated by law and realizes case justice. In order to promote and implement such a judicial obligation, it is necessary to reform the traditional legal theory of origin, in particular, to discover important elements such as principles and legal order.