司法裁判方法选择的经济学分析

An Economic Analysis of the Choice of Judicial Judgment Models

司法裁判方法的司法克制主义与司法能动主义之争由来已久。对此进行经济分析可以看出:对于复杂程度不同的案件,两种裁判方法花费的裁判成本有所差异,作为理性经济人的法官会倾向于选择成本较低的裁判方法。当立法不足或法律规范之间存在大量矛盾,或人们普遍对法律缺乏信任时,司法克制主义的裁判成本就会增加,司法能动主义则会兴起并发展;当立法充足、法规明确,公民对法律的信任度增加时,司法克制主义裁判成本就会降低,并将取代司法能动主义。

The dispute between judicial restraint and judicial activism has existed for a long time. The conclusion based on economics analysis is that for cases with different complexity, these two models of judi- cial judgment cost differently. As a reasonable person with economic sense, the judge would undoubtedly prefer the model with low cost. When legislations are not well established, or many discrepancies exist a- mong legal norms, or people commonly lack confidence in justice, the cost of judgment building on judicial restraint will increase, and judicial activism will rise and develop. In turn, when legislations become mature and their regulations are explicit, people give more and more trust to justice, the cost of judgment building on judicial restraint will decrease, and it will take place of judicial activism.