诉讼本质之思辨——从探求真相到实现程序正义的内在逻辑

Study on the Essence of Litigation——The Internal Logic from Searching Fact to Realizing Procedural Justice

诉讼发生的前提是纠纷当事者自行探求真相解决纠纷的困难性,即自行解决纠纷的各种途径功能较弱。诉讼从民间、政府到法院发展的内在逻辑是揭示真相能力的逐步提升。诉讼程序公正的内在力量是为探索真相而追求的程序自治性,即对纠纷天然求真格局的固定。诉讼程序独立的实质是程序真实先于而不是优于实体真实,它是对诉讼程序公正的发展。诉讼效率是诉讼程序从理想到现实的桥梁。诉讼公正与效率调和基本路径的思路是通过维持与扩大诉讼结构的方法提升诉讼效率,另一种思路是作为主要途径的简化诉讼结构。

The premise of litigation is the difficulty to settle dissensions by themselves for two parties, which means this function of solution is rather feeble. The development of litigation, from private action to government to court, is the advance of the function for posting fact. The power of procedural justice is the procedural autonomy for fact, which is the fastness of pattern to searching fact. As the main aspect of procedural justice, procedural independence, which essence is procedural reality is prior to rather than excelled substantial reality is the development of justice. The efficiency is the bridge from ideality to realism for litigation. One way to attempting justice and efficiency is to advance the efficiency of litigation by keeping and extending structure of litigation. The other main way is to predigest structure of litigation.