非正式开庭视角下的程序与法官

Procedure and Judge from View of Informal Session

本文试图从内在紧张的民事审理模式与“政法型”司法体制入手,揭示与分析社会转型中法官/司法面临的既要满足制度的程序要求又要保障纠纷的实体解决之间的两难困境,以非正式开庭为切入点提出“司法之道”,同时切入程序的历史性以及程序适度原则,就此说明中国法治建构与社会转型的曲折路径。

The civil judicial model in China contains inner contradiction, which is the product of a judicial system that mingles with politics. As such, the contradiction between procedural demand of the law and positive dispute resolution is a dilemma facing Chinese judges in the time of profound transformation. With informal sessions in civil litigation as the point of departure, the author explains ＂the way of justice＂ in China, bringing out the historicity of procedure and the principle of moderate procedure, and suggesting the future path of China＇s rule of law.