矫正正义观现代转向的法理学思考——以食品大规模侵权行为为背景

Jurisprudential Thinking on the Modern Turning of Corrective Justice Concept——Under the background of food mass torts

传统矫正正义观缺乏制度性的人文关怀,"无害于人"的消极行为标准导致了人与人之间的冷漠。现代社会是风险社会,合理行为的伦理标准取代了行事风险自负的非道德标准,矫正正义更应注重实质正义。矫正正义赖以存在的社会基础抽象主体平等和主体互换性已然丧失,矫正正义应作为一种独立的正义形式,而非囿于过错被视为分配正义之延续,其仍应视为侵权法的价值基础。大规模食品侵权行为背景下矫正正义观的现代转向应偏重安全,对私法主体区别对待,对弱者进行制度性人文关怀,从社会资源配置的角度关心受害人的生活状态和质量变化,呵护人的内在世界。

Traditional corrective justice concept lacks the concerns from humanities, and its negative standard of ＂no harm to others＂ led the nonchalant relationship among people. Modern society is a risk society, in which self-burdened non-moral norm has been replaced by ethical standard of rational behaviors, so corrective justice ought to focus on substantial justice than ever. The abstract equality of social basic main body and interchanged main body that corrective justice relies on had lost, and the corrective justice should stand as one independent form of justice, rather than an extension of distributed justice that is still regarded as the value basis of tort law. The modern turning of corrective justice, in food mass-tort conducts, stresses more on safety, discriminates main body of private law, takes humanistic-care in system, concerns more about the living state and quality change of victims from the allocation of social resources, and takes care of inner world of man.