公众查阅法院记录:现状、比较与建构

A Review of Public Access to Court Records:Its Current Status,Relationship with OtherPractices,and Future Development

公众以复印、查询、摘抄等方式查阅法院记录,是司法公开的重要内容。允许公众查阅法院记录的司法公开是“权利型”司法公开,可以祛除我国司法公开中长期存在的“选择性公开”和“形式性公开”等痼疾。目前我国仅民事诉讼法第156条明确规定公众可以查阅法院记录中已经生效的判决书、裁决书,司法实践中对公众查阅法院记录基本持否定态度。美国、加拿大和澳大利亚从宪法、立法或法院规则层面赋予公众查阅法院记录的权利。我国公众查阅法院记录制度的构建十分有必要。在设计我国公众查阅法院记录制度时要平衡公众司法知情权与个人信息权。进而将公众查阅法院记录的要求上升为权利,拓展公众可以查阅法院记录的范围,坚持两种获取方式并行并确立同样的获取标准。

The public may gain access to court records by means of coping, consulting and extracting the relevant documents or data, which is one of the important parts of open justice. Allowing the public to get such access, which is an open justice determined by the respect of people's rights, can eliminate the perennial problems of “selective openness” and “formal openness” in China's judicial system. The current legislation and practice nearly hold negative attitude to the right of the public to gaining access to court records in China. Only the Civil Procedure Law of the People's Republic of China explicitly provides that it is the right of the public to gaining access to court records. According to Article 156, the public may consult effective written judgments and rulings. However, there are a great number of judicial practices in the United States, Canada, and Australia, which authorize the legal right of the public to gaining access to court records provided by the constitution, legislation or court rules. So, it is imperative to establish China's system for the public access to court records. First of all, it is important to balance the right of public judicial information and private information. And then, it is necessary to turn the public's claims to access to court records into their legal rights, expand the scope of court records the public may get access to, and permit the public to gain access to court records in both physical and digital manners.