交换的正义与分配的正义——纠纷解决途径的正当性基础解读

Exchange Justice and Distribution Justice: On the Justice of the Dispute Settlement Modes

民事诉讼程序对于纷争利益的处理,主要是通过合意与决定这两种途径来进行的。合意实质上就是当事人出于自身利益的考虑,而与对方达成的利益交换契约,其正当性主要体现在利益交换方面,要符合交换正义的要求;而决定则是法院根据自己对于正义的理解,对争议问题作出的安排,其正当性则体现在利益的强制配置方面,应当遵循分配正义准则。在具体的案件处理中,两种正义经常交织在一起,共同构成裁判结果的正当性基础。

Civil procedure generally settle disputing interest through two modes which are agreement and decision respectively. The substance of agreement is an interest swap contract achieved by parties taking self interest into consideration. The justice comes from the interests exchange between two parties and should accord with the standard of the exchange; However the decision is that the court perform arrangement in resprespect of disputes based on its own understanding of justice, the justice comes from the interests arrangement by court and accord with the standard of the stribution justice. This two kinds of justice usually interweaves together and constitutes the basic justice to judgement in the settlement of specific cases.