论风险社会语境下司法的风险预防功能

Risk Prevention Function of Judiciary in the Context of Risk-Prevalent Society

当下我国司法承载着重要的社会治理功能。随着以风险社会为代表的现代性危机的到来,司法究竟如何应对已是无法绕开的话题。我国司法以平息纠纷为现实导向,以追求正义为价值目标,但是这二者都缺乏对全社会层面风险因素的考量。而司法所具备的程序正义和判决说理等特征使其能够在一定程度上发挥风险治理功能,也有道德上的合法性。基于此,我们要充分发挥司法环节的风险治理功能,未来应当在运用司法政策提高法官风险预防意识,厘清法院和风险规制机关的关系,充分激励风险诉讼等方面做出改变。

Currently China＇s judiciary bears the function of social governance. With the arrival of the modern crisis represented by a risk-prevalent society, the role of judiciary becomes an unavoidable topic. For China＇s judiciary, to quell disputes is its orientation and to pursue justice is its ultimate goal; however, both of these two purposes lack consideration of risk factors by taking society as a whole. Meanwhile, the judiciary is characterized by procedural justice and conservativeness, which in a certain degree enable it to play the function of risk management while being in alignment with moral legitimacy. In light of this, judiciary＇s function of risk management should be given full play; judges＇ awareness of risk prevention should be intensified by means of judicial policies; the relationship between the legal court and risk regulation authorities should be clarified; and lawsuits of risk should be encouraged.