乡村司法悖离官方表达的功利行为及其诱因——以S县锦镇人民法庭为例

Contradictory between official expression and utilitarian practice in rural judicial: Empirical study on Jinzhen People's Tribunal of S County

对S县锦镇人民法庭2011—2012年间的调查表明:虽然在司法机关的官方表达中,对案件的处理必须要符合司法规范化建设的要求,实现其法律效果、社会效果与政治效果的统一,但在司法实践中,乡村法官所作出的处理决定既非为了平息纠纷、为民排忧解难,亦非为了实现法治,而是出于自利的目的,在实践中形成了择案而立、调解本位甚至强制调解以及"以结代收"等司法策略,其处理问题、避免麻烦的心态贯穿人民法庭日常运作的始终,偏离了法治和治理(亦即合规范性与工具主义)的双重制度定位。乡村司法之所以出现和官方表达相悖的功利化行为,与其司法制度定位的治理化和法院内部考核管理方式的强行政化密不可分,所受理案件的乡土性也决定其功利化的运作方式,未来亟需综合考虑乡村司法所处的系统性变量对其予以调整完善。

Based on an empirical survey in Jinzhen People＇s Tribunal of S county during 2011-2012, the paper found that there was contradictory between official expression and utilitarian practice in rural judicial： the rural judicial was the harmonious unity of legal effect, social effect and political effect in official expression, while the purpose of rural judicial was neither dispute resolution nor realization government by law, but for the purpose of self-interest. It mainly manifested as dedicated to the reconciliation agreement with a series of strategies such as to be flexible and rigidly both, and so on. As a result, rural judiciary departed from dual system orientation of the rule by law and the governance in practice, in other words, the dual purposes of legality and instrumentalist, the essence of which was operating in a way of utilitarianism （that is to get out of trouble and to pursue court achievements）.The author thought that the contradictory was caused by inappropriate orientation of judicature, the administrative check-up system in the court and the local color of the cases, and the rural judicial should be adjusted and perfected after considering its comprehensive variables.