中國法院裁判說理的雙重性——以疑難刑案為對象

The Duality of Chinese Court's Judgment Reasoning — Taking Difficult Criminal Cases as Studying Object

Student thesis: Doctoral Thesis

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Author(s)

  • Di GE

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Detail(s)

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Supervisors/Advisors
Award date20 Dec 2019

Abstract

在中国大陆,裁判说理简单化长期受到批判。但通过经验分析,裁判说理中存在内外说理的双重性现象。事实上,静态规则(证明标准与量刑说理)、规范依据、超规范因素(社会效果与刑事政策)及司法行政化等均对这种双重性具有解释力。说理内外有别,克服形式推理造成的局限,增加了大众对司法权威的认同,实现了法官在同行说理的“智识竞争”中展现自我价值,系司法实践的内在需求。这种现象不仅与微观的规则适用相关,还与宏观的文化传统、公众法观念、司法体制及立法技术等诸因素关联,存在系统性缘由。加强裁判文书对外说理,是因应司法透明、司法民主,提升司法公信力的举措,亦为当前司法改革中话语正当性的要求。但这一要求与既定的司法结构、司法运行状况乃至于政治等因素之间存在张力,又是不可调和的,故内外说理有别的双重性现象短期内将难以消除。
The simplification of judgement reasoning in court’s has long been criticized in mainland China. Based on the practical evidences, it can be partially explained by the existence of duality of judgement reasoning, namely reasoning from written words and reasoning reading between lines. In real cases, static rules (proofing standards and sentencing reasonings), normative basis, non-normative factors (social effect and criminal policy) and judicial administration etc. can be used as the supporting methods to understand the duality. The dual reasoning overcomes limitations caused by explicit words, gains more public’s recognition towards judicial authority, and displays judges' self-value in the “intellectual competition” of counterpart reasoning, which are the inherent demand of judicial practice. This phenomenon is not only related to the application of micro-rules, but also to macro-factors, such as cultural traditions, public law concepts, judicial system and legislative technology. Surely, improving the explicit reasoning is a measure to comply with the demand of judicial transparency, judicial democracy and judicial credibility as well as the legitimacy of political discourse in the current judicial reform. However, we have to realize that there is a tension among this demand and the established judicial structure, judicial operation and even political factors etc., which is irreconcilable. Therefore, it will be difficult to eliminate the phenomenon of duality of judgement reasoning.

    Research areas

  • judgement reasoning, duality, difficult criminal cases, causes