法律实证研究中的伦理问题——以刑事法为视角

Ethical Problems in the Empirical Study of Criminal Law

在刑事法律实证研究中,由于被研究者多为极易受到研究伤害的弱势群体,研究过程及结果又往往涉及司法改革和司法公正等重大问题,因而研究伦理亟需规范。实证研究本质上是一种生产知识的方法,对刑事法律实证研究的伦理规范主要是对研究权力的规范,目的是防止知识、权力与资本的"共谋"。应当遵循自律、纪律和法律的总体思路,设立伦理审查委员会,依据尊重、保护、公正、全面的原则,规范我国的刑事法律实证研究。在规范的同时还要建立相应的保障机制,以解决实践中法律实证研究难以开展的不利局面。

Empirical study is a method of producing knowledge essentially. Compared with the theoretical study, its particularity lies in that, it directly takes living person as the research objects, and takes the facts as the basis. Thus its process and result should be more persuasive. However, big scale empirical study often needs certain financial aid, and some sponsors also intentionally or unintentionally influence the research process and result. The sponsor decides which topic to fund, and the researcher chooses which topic to study. These potential preferences enable the empirical study to have certain subjectivity. In addition, because the objects of empirical study of criminal law are always the criminal victims, suspects, defendants or prisoners who are at a disadvantage, their right to know, right of privacy or others are easier to be infringed by the empirical study. Even more, the empirical study may also cause miscarriage of justice. From the research angle, the empirical study will sometimes create research pollutions that affect the smooth development of other empirical studies. This requires making clear the rights, responsibilities and duties of the related research fellows in empirical study. The overall thought is to unify the autonomy, discipline and law. Especially, it is necessary to formulate the ethical standards of empirical study, clear about the respect, protection, equity, comprehensiveness and other basic ethical principles of empirical study, and set up the ethic review committee and the review procedure. In practice, to develop an empirical study also faces many difficulties. So it also needs to establish the corresponding safeguard mechanisms, such as entrusting specific organizations the power of developing empirical study, stipulating the coordination and tolerance duties of the objects, and giving the full safeguard in the research fund and time. Ethic and technique are the two important aspects in the empirical study. The researcher should be good at balancing the relationship between them. Correspondingly, whether the empirical study projects is successful or not should also be weighed and evaluated from two aspects. One is whether it has followed the ethical standards of empirical study, and the other is whether it has a substantive breakthrough in its research result or its method technique.