刑事法律推理的缺陷与校正——从形式理性走向实质理性

Defects and Correction of Criminal Law Reasoning——From Formal Rationality to Substantive Rationality

绝对的规则导致绝对的专制,司法裁判只有打上正义的烙印才能被信仰和遵从。在法治进程深入推进,民权意义不断增强的年代里,过分强调形式推理会损害司法的根基。但由于历史和现实的原因,刑事司法一味追求司法的形式公平,造成了法官思维与公众正义的摩擦和对撞。刑法的安定性和正当性之间的紧张关系,需要通过实质推理来消灭,刑事司法应当顺应时代发展潮流,以实质推理为必要调剂,克服矫枉过正的司法积弊,让公平正义在具体的案件中得到实现。在揭示形式主义推理危害的基础上,对形式正义与实质正义关系重新思考和定位,并就推动实质理性的构建作了环境、机制和节点层面的探讨,以期有助于改善当下的司法风气。

Absolute rule leads to absolute monarchy. Judicial judgment can＇ t be believed in and obeyed unless it is branded with justice. In the era of promoting deeply the process of rule of law and increasing civil rights significantly, too much emphasis on formal reasoning will damage the judicial roots. But due to historical and practical reasons, the pursuit of formal justice equity in the criminal justice causes friction and collision between the judge thinking and public justice. The tension between stability and legitimacy of criminal law needs to be eliminated through substantial reasoning. The criminal justice should conform to the development trend of the times, use substantial reasoning as the necessary adjustment, overcome overcorrect judicial long - standing abuse and make fairness and justice realized in specific cases. On the basis of revealing the harm of the formalism reasoning, the relationship between the formal justice and substantive justice is rethought and positioned, and the circumstance, mechanism and node level of promoting the construction of substantial rationality is discussed to hope to improve current judicial practice.