反思以后果为导向的司法裁判思维——探求一种谦抑限制的标准

Reflection on the Consequence-based Adjudication Thinking: An Exploration into a Modest Standard of Restraint

后果主义裁判颠倒了“法的发现”与“裁判的证立”,以预测的可能后果作为裁判思维的逻辑起点,通过对后果的预测和评价来选择法律并形成裁判结论。极端的后果论思维不可取,温和的后果论可细分为适用规则的后果主义与续造规则的后果主义,二者的适用均严格限定在疑难案件领域。后果论思维背后暴露了表面证立与虚假证立的问题,需要接受教义学的改造和限制。为此,需要从形式与实质两个层面构建限制的标准。在形式层面上,后果论思维运用应严格依法进行,不得任意摆脱法律的拘束。在实质层面上,后果论思维要接受合理性的检验,对后果的选择、评价及考量要考虑对未来类似案件的一般性影响,也要使后果考量在实质理由层面实现融贯,不得与法律的价值、基本原则及整体法秩序相冲突,确保后果主义裁判与依法裁判的立场保持一致。

Consequentialist adjudication reverses the“discovery of law”and the“justification of adjudication”,taking the predicted possible consequences as the logical initial point of thinking,and selecting laws and forming adjudication conclusions through the prediction and evaluation of consequences.This is quite different from the thinking pattern of legal dogmatics,which emphasizes thinking in terms of the legal rules themselves and takes a completely opposite path in the logic of thought.According to the strength of the position,there are extreme and moderate consequentialism.Extreme consequentialist thinking takes consequences as the dominant determinant,therefore the normative role of the law itself is dissolved,which makes it undesirable.The moderate consequentialism,incorporates the evaluation and consideration of consequences under the premise respecting and recognizing the binding effect of legal norms on adjudication,thus being reasonable to a certain extent.The moderate consequentialism can be further subdivided into the consequentialism of the rules-applying and the consequentialism of rules-continuance,both of which are strictly limited to the realm of difficult cases.Whereas the consequentialism of the rules-applying is still regulated by the normative purpose,the consequentialism of rules-continuance goes beyond the normative purpose into the realm of judicial continuation,and is thus subject to harsher restrictions.The consequentialist thinking implies the logic of superficial justification and false justification.This thinking practice is difficult to openly supervise and examine because of its covert manner in which it is often acted.Considering that consequentialist thinking has the tendency of adjudication beyond the law,it is necessary to transform and limit it in a dogmatic way.Thus,it is necessary to construct restrictive standards at both the formal and substantive levels.At the formal level,consequentialist thinking should be carried out strictly in accordance with the law and should not be arbitrarily freed from the constraints of the law.At the substantive level,consequentialist thinking should be subjected to the test of reasonableness.The selection,evaluation and consideration of consequences should take into account the general implications for similar cases in the future,as well as the integration of the consideration of consequences at the level of substantive grounds,and should not conflict with the values,the fundamental principles of law and the legal order as a whole.Thus,the consistence of consequentialist adjudication and the position of adjudication according to law could be ensured.