论司法裁判中后果主义的适用定位与论证路径——以“冰面遛狗溺亡案”与“摘杨梅坠亡案”为例

On the Orientation and Argument Method of Consequentialism in the Judicial Adjudication——Taking “the case of someone who was drowned during walking a dog on the ice” and “the case of someone who died after a fall during picking bayberry” as examples

"冰面遛狗溺亡案"与"摘杨梅坠亡案"反映了法条主义和后果主义两种不同的裁判理念。法条主义一元论和后果主义首要论都是一种偏执一端的立场。将后果主义定位为补充性裁判思维是一种更加允执其中的方式:其一,符合当前我国社会的司法需求,契合司法改革的目标;其二,能够弥合显性理论和隐性实践之间的错位;其三,避免片面看待我国传统法律观念以及片面引入西方法学理论;其四,可以帮助我们走出混乱的后果主义裁判思维泥潭。通过以常识、常情、常理明立场;以同案同判助公正;以驳论和证立促服判;以体系化论证保融贯的方法论建构,能有效提升后果主义裁判思维的可预测性和可接受性。

"The case of someone who was drowned during walking a dog on the ice"and"the case of someone who died after a fall during picking bayberry"reflect judicial concepts of legalism and consequentialism respectively.Legalism monism and taking consequentialism as the primacy judgment method are both paranoid orientations.The appropriate orientation of consequentialism is to be treated as a supplementary adjudicative thinking:Firstly,it meets the judicial needs of our society and meets the goal of current judicial reform;Second,it can bridge the gap between explicit theory and implicit practice;Thirdly,it can avoid our one-sided view of our traditional legal concepts and the legal theories of western countries;Fourthly,it can help us to get out of the quagmire of confusing consequential adjudicative thinking.We can effectively improve the predictability and acceptability of consequential judgment thinking by these approaches:use general knowledge,normal emotions and common sense to clarify judge’s position;accord consistent judgments with similar cases to realize justice;use refutation and justification to enhance the submission of judgments;use systematic argumentation to ensure coherence.