摘要
个案正义与依法裁判之间之所以会发生冲突,是因为法理维度、立法维度、司法维度存在情法冲突。情理不同于私情,合理性是情理的内核。情理司法化解情法冲突难题具有正当化依据。情理司法通过情理思维和规范评价做出司法裁判,可以弥补规则司法的不足,彰显裁判的合理性,是对人民群众情理价值需求的有效回应,也是对传统司法文化的继承发展。司法裁判不只是简单的形式逻辑推论,还需要融入价值判断、利益衡量等体现公正裁判合理内核的情理需求。司法者需要秉持司法良知,运用司法智慧,通过与时俱进解释法律等路径,将正义置于伦理范畴之内、公众情感之上,在现有法律框架内做出充分体现情理需求的裁判。情理司法是化解情法冲突的有效路径。裁判的可接受性是情理司法成功化解情法冲突的标志。
A conflict would sometimes appear between“case justice”and“judging according to law”.The dilemma of the kind arises in that conflicts exist between the stability and justice of law,from the perspective of jurisprudence,whereas there is no perfect match between the legal rules and social life,from the perspective of legislation.And from the perspective of judicature,it seems not an easy job for jurisdiction to find out an exactly effective approach to a proper application of requirements of reason and emotion into judicature.Therefore,the judicature with the ideal application of reason and emotion which aims at producing corresponding judicial judgment is supposed to obtain such properties as the thoroughness of reasoning,the legitimacy of values,the supplementary of rules,the needs of execution and the practicability of approaches.Justice based upon reason and emotion uses thinking in both reason and emotion to deal with the conflicts between emotion and law by unifying reasonable and emotional evaluation and regulation evaluation,which is not only the inheritance and development of traditional judicial culture but also an effective way to respond to people’s reasonable and emotional value demands.Justice based upon reason and emotion needs the justification foundation for resolving conflicts between emotion and law.It is necessary to search for the law resources of reason and emotion beyond the legal rules,paying attention to the embodiment of people’s ethical demands and emotional demands in the judiciary,promoting a benign interaction between reasonable evaluation and regularity evaluation,be ready for discovery and judgment based upon reason and emotion in the process of criminal adjudication,maintaining it in the track of the rules of law.Instead of mechanical application of law or judicial technicalization,the conscious and active application of rational and emotional justice is the necessary process of the demonstration of the judiciary’s“spirit”and“temperature”of the referee that not only tends to make a simple formal logic inference,but also needs to incorporate the reasonable needs of value judgment and benefit measurement to reflect the reasonable core of a fair referee.The judicial personnel need to rely on the judicial conscience,exert their own judicial wisdom,place justice within the scope of ethics and above public emotion through the process of keeping pace with the times to explain the law,and make a judgment that fully reflects the needs of reason and emotion within the existing legal framework.Only in this way can the judicial judgment be accepted by the people.The acceptability of referee is the success of reasonable justice to resolve the conflicts between emotion and law.To enhance the acceptability of referee,much attention needs to be focused upon the following five points:the first,reasonable evaluation is the link between legal conviction and ethical conviction;the second,the social harmfulness is an important consideration for the criminalization of legislation and the criminalization of justice;the third,the integration of rational thinking into legal interpretation is the inherent requirement of referee acceptability;the fourth,a full use of the“discretionary reduction”regulation to resolve the conflict between emotion and law;and the last,enhancement of the reasoning and moderation of the rhetoric of judgment documents.This paper has a practical guiding significance for solving cases of conflicts between emotion and law in judicial practice.
作者
梁健
侯立伟
Liang Jian;Hou Liwei(Guanghua School of Law,Zhejiang University,Hangzhou 310058,China;Political Department of Tongxiang People’s Court,Jiaxing 314500,China)
出处
《浙江大学学报（人文社会科学版）》
CSSCI
北大核心
2023年第1期65-79,共15页
Journal of Zhejiang University:Humanities and Social Sciences
关键词
情法冲突
情理司法
刑事疑难案件
裁判可接受性
路径
conflict between emotion and law
reasonable justice
difficult criminal cases
admissibility of referee
the path
作者简介
梁健(https://orcid.org/0000-0003-4898-2640),男,浙江大学光华法学院特聘研究员,硕士研究生导师,法学博士,主要从事刑法学、刑事诉讼法学研究;侯立伟(https://orcid.org/0000-0002-3027-5748),男,浙江省桐乡市人民法院政治部主任,法学硕士,主要从事刑法学研究。
