司法类案的冲突及解决

On the Conflicts between Judicial Cases and its Resolution

类似案件类似审判是司法公正的基本要求,但是如何做到类似审判却构成了司法实践中一项巨大的挑战。自类案机制产生起,其背后就隐藏着一种理论预设:找到类似案件,就等于找到了“正确且唯一”的答案。然而,在实践中,并非只有错案才会造成审判结果的不一致,对法律的不同理解也会形成不同的法律意见,这就导致类案检索的结果往往并不唯一。而类案之间彼此冲突,恰恰是实现类案类判最主要的现实障碍。针对类案之间的冲突问题,实践中存在两种不同的观点和做法:一是法官依靠法律推理自行判断和选取类案的“自发性模式”;二是法官依审级将分歧进行提交的“建构性模式”。面对类案冲突,应建立一套兼具建构性与自发性双重模式特点的解决模式。其要点包含三个层面:第一,确定自发性模式与建构性模式的分界点。第二,在自发性模式中确立类案中各类司法案例的参考位阶和依据。第三,在建构性模式中完善类案的分歧提交与解决机制。

Similar trials in similar cases is the basic requirement of judicial justice,but how to achieve the similar trials has constituted a huge challenge in judicial practice.Since the emergence of the mechanism of similar cases,there has been a theoretical presupposition behind it:to find similar cases means to find"the correct and the only"answer.However,in practice,it is not only false trial that will lead to inconsistent trial results,different understandings of the law would also form different legal opinions,which leads to the retrieval results of similar cases are often not unique.However,the conflict between different trials is the main obstacle to the realization of the judgment of similar cases.In view of the conflict between similar cases,there are two different viewpoints and approaches in practice.The first is the"spontaneous mode",in which judges should rely on legal reasoning to make their own judgments and decisions.The second is the"constructive mode",in which judges should submit differences according to the level of trial.In.the face of class conflicts,a set of comprehensive supporting mechanism with the characteristics of both constructive and spontaneous modes should be established,and its main points include three aspects:Firstly,to find the boundary between the two models.Secondly,in the spontaneous mode:to establish the status reference of different cases.Thirdly,in the constructive mode:to improve the case of the submission of differences and equity linkage mechanism.