行政类案同判:方法与本体之间的目光往返流转

Same Judgment in Similar Administrative Cases:Interaction between Method and Ontology

类案同判的共同性问题是何谓类案,如何同判。原本这是一个在民众和法官交往互动框架下,从案件的类似性方法推理到主体间性的类比本体形成的互动互构过程。但绝大部分研究者仅仅着眼于逻辑分析、类比推理和法官义务等方法论,没有触及类案同判深层次的方法论和本体论之间互动互构问题。该问题在行政类案同判中尤为典型。无论是行政诉讼法的制度设计要求,还是行政司法裁判希望获得的社会效果,法官仅仅基于法律义务和法律方法都不能较好地予以解决实现,必须在公众、法官、行政机关这三种主体及其职能所组成的结构性本体基础上进行行政类案同判。完整的行政类案同判是一个结构性本体和诉判一致类型化方法相互生成的过程。在这样一个本体和方法之间的互动互构过程中,行政类案同判可以回归行政诉讼本意,在行政诉讼领域中取得类案同判的理想效果,进而为法理学中的类案同判研究提供可资借鉴的启发和来自部门法的验证。

The common issue of the same judgment in similar cases is what a similar case is and how to make the same judgment.Originally,this was an interactive and mutual construction process from the similarity method of the case to the analogous ontology of inter-subjectivity under the framework of interaction between the public and judges.However,the vast majority of researchers only focus on methodologies such as logical analysis,analogical reasoning,and judges'duties,and do not touch on the interaction and mutual construction between the in-depth methodology and ontology of similar cases and judgments.This problem is particularly typical in the same judgment of administrative cases.Whether it is the requirements of the system design of the Administrative Litigation Law or the social effects that administrative judicial adjudication hopes to obtain,judges cannot better solve and achieve them based on legal obligations and legal methods,and must make the same judgment on the basis of the structural ontology composed of the three main bodies and their functions:the public,judges,and administrative organs.The complete same judgment of administrative cases is a process in which the structural ontology and the typological method of consistency of litigation and judgment are generated by each other.In such an interactive process of interaction between ontology and method,the same judgment of similar administrative cases can return to the original intention of administrative litigation and achieve the ideal effect of the same judgment of similar cases in the field of administrative litigation,so as to provide inspiration for reference and verification from departmental laws for the study of similar cases and the same judgment in jurisprudence.