摘要
In this transitional phase,a daunting challenge posed to the Chinese judicature is the complicated interaction between the trial court and the public,when it comes to cases that gain popular attention. The key issues lie in both the authority of the judicial judgment and the public's faith in it. It is undoubtedly of crucial significance to arrive at a sound relationship between a society espousing democracy,and proper legal expressions among the public and legal rule. Specialists argue that public opinion stands as no replacement for professional judgments made by judges,while advocates of public opinion state that any judicial judgment should take into consideration the ideas and thoughts of the public. For advocates of responsive law,the court should respond favorably to reasonable public opinions without abandoning the foundation of its independent trials. In our opinion,considering the functional designs of the judicature in the constitutional system and the reality of public opinion in contemporary China,responsive law is preferable to the other two alternatives so as to provide a real solution to the present dilemma involving the interaction between the trial court and public opinion.
经由一系列全民高度关切的个案而引发的法院审判与民意诉求之间的角逐与较量成为转型时期司法所必须直面的难题,其核心的法理学问题在于司法裁判的权威和公信力,如何在一个民主法治的社会中与大众的法律表达形成一种良性互动的关系。专业论者主张民意并不能代替法官在案件中的专业主义判断,民意论者主张司法判决应该径行吸纳民众的见解,回应论者主张在法院独立审判的基础上回应一定时期内的民意。基于司法在宪法体制中的功能设计和当今中国民意表达的现实问题,中国应该以"回应型"司法哲学处理司法与民意之间的关系,这将会促成司法之殇与民意之难现实困境的法理破解。
