刑事指导性案例生成的主体性考察——以C直辖市司法人员实证访谈为基础

An Investigation of Subjectivity on the Formation of Criminal Guiding Cases——Based on the Empirical Study of Judicial Officers in C Municipality

社会工作中,主体对主体性认识程度、实现程度决定了工作积极性与工作成效。刑事指导性案例生成机制中虽存在多元主体设计,但掩盖不了单一主体推动制度落实的现实。原办案单位的法官、检察官是刑事指导性案例的报送、推荐主体,但其在整个指导性案例工作机制中因付出多回报少而工作积极性不足。又因刑事指导性案例生成中标准确定被行政化管控而丧失。相较而言,在生成机制的主体性考察方面,与正面宣传相反的坊间信息更有可信度,进而也暴露出被遴选出的指导性案例从长远来看,其生命力与指导性值得担忧。

How a man realizes his subjectivity determines his work motivation and effectiveness in social work.Although there exists the multiple subject design in the formation mechanism of the criminal guiding cases,it cannot cover up the fact that only a single subject has promoted the implementation of the mechanism. The judge and prosecutor of the original case handling unit are the men who actually submit or recommend the criminal guiding cases. Yet for the reason that they usually pay a lot but get little back,which leads to the whole guiding case work mechanism working in low effectiveness. They will get further loss of their subjectivity for the standard of criminal guidance is determined by their upper administrative officer. Comparatively speaking,with regard to researching the subjectivity of the man in the guiding case generative mechanism,it is found that anecdotal information,which is contrary to the positive publicity,is much more credible. So the vitality and its true value of guiding case is worthy of worrying about in the long run.