司法裁判稳定性与正确性张力之消解

The Dissolution of the Tension between the Stability and Correctness of Judicial Adjudication

裁判稳定性与正确性张力在目的理性主导的纠问式诉讼中近乎不存,但却以案件不断再审为代价。该张力在规范理性主导的抗辩式诉讼中基于程序而得以消解,但却以未能充分兼顾实质正义为新代价。基于商谈理论对诉讼本质的分析,裁判稳定性之形成,需充分保障当事人主体间性,遵守法律规范与程序条件进而对案件结果达成商谈性共识,故应从案件源头和审判过程两方面入手来化解裁判稳定性与正确性张力。在主观诚、客观真、规范妥的条件下,良判得以形成,此时不存在裁判稳定性与正确性张力问题。但当主观恶意、客观事实改变、规范运用失当时均会导致张力重现,此时需法官从主客观因素及规范适用层面把握“再审以重塑裁判正确性”的“度”。

The tension between the stability and correctness of adjudication is almost non-existent in the purpose-driven interrogation litigation,but at the expense of the continuous retrials of the case.This tension can be dissolved on the basis of procedure in normatively rationally-led defense litigation,but at the new cost of failing to adequately take into account substantive justice.Based on the analysis of the nature of litigation by the theory of negotiation,the formation of the stability of the adjudication needs to fully protect the intersubjectivity of both parties,comply with the legal norms and procedural conditions selected by the two parties,and then reach a negotiable consensus on the outcome of the case.Therefore,the tension between the stability and correctness of the adjudication should be resolved from the two aspects,the source of the case and the trial process.Under the conditions of subjective sincerity,objective authenticity and appropriate standardization,good judgments can be formed,and there is no tension between the stability and correctness of the judgment at this time.However,when subjective malice is shown,objective facts are changed,and the norms are not properly used,tension will recur,and at this time,judges need to grasp the"degree"of"initiating a retrial to reshape the correctness of the judgment"from the subjective and objective factors and the level of application of norms.