形式正义与实质正义间的冲突

Conflict between Formal Justice and Material Justice

法律实践中普遍存在着形式正义与实质正义之间的矛盾。无论是民法还是涉外民事关系法律适用法,法的确定性与灵活性之间的抉择是司法者难以避免的问题,具体体现为法律原则与法律规则之间的矛盾。形式正义在国际私法领域也称为冲突正义,它要求法官严格遵守法律规则办案。在一般情况下,维护形式正义就意味着实质正义的实现,因此,法律规则体系的稳定性、连续性不可随意破坏。然而,当绝对遵守法律规则将在特殊案件中导致实质不正义的结果时,法官应把握法的精神与主旨,合理发挥自由裁量权,灵活运用法律原则,维护实质正义。

The conflict between formal justice and justice prevails in law practice is very universal. It＇s inevitable to deal with the relationship between certainty and flexibility of rules in domestic civil law, as well as the law to foreign-related civil relations, which is represented by the conflicts between legal rules and principles. Formal justice is also called conflict jus- tices in international private law, which require judges adhere to rules strictly. In general, formal justice means material jus- tice. Therefore, the stability and continuity of legal rules should not be broken. However, judges should exert discretion rea- sonably and apply legal principles correctly to achieve material justice, if legal rules would lead to injustice materially in special case.