司法公开中的裁量及其统制

Discretion and control in open judiciary

当前,我国的司法公开实践中存在着诸多问题,需要对司法公开裁量理论展开系统的研究。同行政裁量不同,司法公开裁量具有主体的特定性、监督的匮乏性、范围的法定性等特点,并受到经济社会发展状况、法律规范状况、法官职业素养和公民权利意识等因素的影响。在司法公开裁量中,法官既要注重程序上的良好公开,也要注重裁判中的释法说理工作。为了促进司法公开裁量权的良好行使,还应当从立法的统制、法院的自我规制和社会统制等方面建构合理的统制体系。

Currently, there are many problems in the practice of open judiciary in China. The systematic research is needed on the theory of judicial discretion. Being different from administrative discretion, judicial discretion has the characteristics such as the specific subject, the insufficient supervision, and the statutory scope. And judicial discretion is affected by the factors such as economic and social development, legal norms, judge＇s professional quality, and right consciousness of citizens. In the open judicial discretion, judges should not only focus on the good publicity of procedure, but also pay attention to the interpretation and reasoning work in judgments. In order to promote the good exercise of judicial openness discretion, reasonable control system should be built from the aspect of legislative control, self-regulation and social control of legislation.