论协商性司法的理论基础

The Logic of "Deliberative Justice"

协商性司法是一种新的程序主义,它强调通过对话、协商、妥协实现纠纷的有效解决。在协商性司法中,正义被重新解释,即当事人所追求的是自己需要的正义,称之为"互利正义"或者"协商正义"。对话与妥协是协商性司法的基本作用机理,而程序保障则是协商性司法的制度框架。

Deliberative justice is a newly developed procedural notion whose ＂core idea＂ is to promote solution of disputes through reasonable discussion. In deliberative justice, the word justice attached with some new ideas means one that is pursued and desired by the parties, thus it should be called ＂mutual-benefit justice＂ or ＂agreed justice. ＂ Discussion and compromise underlines the operation of deliberative justice while procedural protection conduces to establishing its institutional framework.