论司法裁判中法律规则与潜规则的博弈选择

Game Choice between Legal Rules and Latent Rules in Judicial Judgment

在"理性经济人"假设的前提下,法官、当事人、监督机关三方的行为都不可避免地趋向于收益最大化。法官是选择法律规则还是潜规则,不仅取决于法官与监督机关之间的博弈,也取决于法官与当事人之间的博弈,最终的选择以三者的收益达到均衡作为结果。要有效地消除潜规则,一是加大对潜规则行为的监督力度和违规法官的惩处力度;二是构建公正、透明的审判程序和完善的举报机制。

If players are supposed as rational economic men,the behavior of three sides with judges,parties,supervisory organs authority included inevitably tends to maximum gains.Whether the judges choose legal rules or latent rules depends not only on games between judges and supervisory organs,but also on games between judges and parties,and the final choice will achieve an equilibrium between the three sides.To eliminate the latent rules effectively,we should on the one hand increase supervisions on acts of latent rules and punish the violated judges;on the other hand,we build a fair and transparent trial procedure and perfect the reporting mechanism.