程序与法律形式化——兼论现代法律程序的特征与要素

Procedure and Formalization of Law

许多诉讼法学者认为 ,与其把程序法与实体法当作“形式与内容”的关系 ,不如把它看成“手段与目的”的关系。其实 ,程序法与实体法的关系 ,既是手段与目的的关系 ,又是形式与内容的关系。这就是说 ,程序既具有工具性 ,又具有形式性。

Many scholars studying procedure law hold the belief that they would rather regard the relationship between procedure law and substantive law as that between 'means and ends' than regard them as a relationship between them as that between 'form and content'. In fact, the relationship between the procedure law and substantive law signifies both relationships between 'means and ends' and that of form and content, which means that a procedure may be instrumental and formalistic.