应然与实然:关于法院功能的思考

Theory and Practice:Thinking of the Functions of Court

作为国家权力架构中的重要组成部分,法院在社会治理中发挥着解决纠纷、社会控制、造法等多种功能。但在不同的历史时期和不同的体制环境中,法院所表现出的功能形态并非完全相同。西方意义上的法院通过解决纠纷为龙头,实现其多重功能。深受传统影响的中国法院在社会转型时期遭遇若干尴尬。欲矫正法院功能紊乱的现状,必须对法院之功能进行应然和实然的分析并寻求改革的路径。

As an important part of the frame of the state power, the court has many functions such as disputes settlement, social control and law making in the management of society. However, during the different historical periods and in the different system environments, the function forms that the court shows is not completely the same. The court in the western countries realizes its multiple functions by the settlement of the disputes. China＇s court influenced by the Chinese tradition encounters some awkward in the social transformation. If the present situation of the court disorder is corrected, the functions of the court should be analyzed between theory and practice, and the r~.h）rm path ought to be searched for.