员额制下的法官主体性与主体间性

The Subjectivity and Inter-Subjectivity of Judges Under The Post System

长期以来,法官的主体性因素未得到充分重视,且未厘清法官与其他主体之间的互主体关系,以致影响司法独立,招致司法不公。员额制改革是对法官主体地位的回归,员额制赋予法官裁判主体、责任主体以及社会主体的身份,让法官充分发挥其主观能动性、创造性与自主性。同时,法官主体地位的实现,从内部层面而言,离不开与当事人之间的有效沟通;从中间层面而言,离不开与审判委员会之间的良性互动;从外部层面而言,离不开与社会大众、媒体的友好对话。法官主体性缺失、法官与其他主体之间的关系未厘清,实质上是诉讼这一生活世界被殖民化和被异化。为了平衡与统一员额制下的法官主体性与主体间性,需要防止权力与经济利益对诉讼领域的入侵,回归诉讼的本质,制度设计也应围绕防止权力与经济利益入侵两方面展开。

For a long time, the subjective factors of judges have not been fully valued,and therelationship between the judge and other subjects has not been clarified, influencing judicial inde-pendence and causing judicial injustice. The judge post system reform is a return to the main posi-tion of the judge, which gives judges the status of judges, subjects of responsibility and social sub-jects, so that judges can give full play to their conscious activity, creativity and autonomy. Mean-while, the realization of the subjective status of judges is inseparable from the effective communica-tion with the parties from the internal level. From the external level, it is inseparable from thefriendly dialogue with the public and the media. That the judge lacks the subjectivity and the rela-tionship between the judges and other subjects has not been clarified is the life world of litigation iscolonized, and the litigation is dissimilated. To balance and unified judges, subjectivity and inter-subjectivity under the post system, it,s necessary to prevent the invasion of power and economic in-terests into the litigation field, and to return to the nature of litigation, the system design should alsofocus on two aspects：preventing power and economic interests.