刑事裁判共识引论

Consensus Theory in Criminal Adjudication

共识理论与刑事裁判在问题的起点与终点、解决认识问题的观念、基本要求等方面都有契合之处,表明将共识理论引入刑事裁判问题中是可行的。刑事裁判共识在主体、对象、程度与形成方法上都有其特殊性。传统价值理论的研究主要存在两个缺陷:一是视野局限;二是深度不够。刑事裁判共识理论与传统价值理论具有一致性,可以统一,但又有所超越,所以能够在一定程度上弥补传统价值理论的缺陷。然而,刑事裁判共识理论也与传统价值理论存在冲突,应当根据情况分别对待。

The fact that between consensus theory and criminal adjudication about the set-out and termination of issues, the concept of cognizing and solving problems and the basic requirements there is a general agreement indicates that it is available to introduce consensus theory into solution of criminal adjudicative problems. Criminal adjudicative consensus has its unique features in object, target, extent and formation way. The traditional value theory has betrayed two defects： being restrained both in scope and in depth. Though some consistent with traditional value theory, consensus theory may overlap with the value theory, it indeed overtakes the value theory and so it can fill the gap of the latter to some extent. However, since there is conflict between them, consensus theory should be dealt with differently under varying circumstances.