论恢复性司法制度的实体法冲突

On the entities conflict in restorative justice system

恢复性司法制度因符合当下和谐社会的理念而得到刑事法理论界青睐和张扬,尤其给备受刑事案件数量重压下的司法实务界带了“清新的空气”。笔者以为,恢复性司法制度以功利主义哲学为其价值基础,以满足司法功利主义的需求。它与我国刑事实体法理论存在诸多冲突与不可协调的矛盾,故需谨慎对待这一制度性的改革。笔者不揣冒昧,遂作此文,提出文中问题,既向老师请教,也与同仁相商。

Restorative justice system, gets the support and favor of the theoretical circles of Criminal Law because it meet the current concept of a harmonious society, and in particular, brings the ＂fresh air＂ to the practical circles of justice which was under the weight of a number of criminal cases. The writer believed that restorative justice took utilitarian philosophy as its value basis to meet the demand of justice utilitarianism. There are many conflicts and irreconcilable contradictions between restorative justice system and theories of entities in China＇s Criminal Law, so we must handle this institutional reform carefully. The writer pointed out problems to consult with teachers and colleagues.