常识、常理、常情融入司法裁判的路径研究

Research on the Path of Integrating Common Sense, Common Reason and Common Emotion into Judicial Adjudication

常识、常理、常情是公众所共同认同的基本经验、道理,是衡量是非标准的基本行为准则,因此,注重常识、常理、常情在司法裁判中的作用就显得格外重要。整体上来说,常识、常理、常情具有各自的含义和共同的指代意义,这是由“常”的特性决定的,其经历了社会生活长期的实践检验,由于词语本身意义的模糊性加之没有明确的法律规定,司法裁判中常识、常理、常情的使用存在诸多的问题。存在法官说理运用常识、常理、常情不准确,并且存在个人或社会偏见以及超出普通人认知的专业知识代替常识、常理、常情,另外,司法裁判对常识、常理、常情的运用还存在脱离事实基础,过度运用等问题。要将常识、常理、常情合情合理地融入司法裁判过程之中,就需要对关键问题进行重视和改进。首先,加强司法工作人员的专业素养与技能水平,使其能够正确对待常识、常理、常情,并且能够合理地运用。其次,要求司法人员厘清说理与说法的关系,在法律规范下讲理,合理地理解法律、执行法律。第三,规范化常识、常理、常情的使用场景,但因类似案件存在多样性,依然存在着较多的困难,最后,要重视指导性案例的作用,指导性案例汇集了人民的智慧,经受住了人民与历史的检验,法官在判案时通过汲取案例中好的经验,考虑当下现实情况人们所认同的看法是什么,然后将所有因素综合考虑,作出符合法律规范也合乎情理的判决。

Common sense, common reason and common emotion are the basic experience and truth shared by the public and the basic code of conduct for measuring right and wrong. Therefore, it is particularly important to pay attention to the role of common sense, common reason and common emotion in judicial adjudication. On the whole, common sense, common reason and common emotion have their own meaning and common reference meaning, which is determined by the characteristics of “chang”, which has experienced a long-term practice test in social life. Due to the ambiguity of the meaning of words and the absence of clear legal provisions, there are many problems in the use of common sense, common reason and common emotion in judicial adjudication. Some judges use common sense, common reason and common emotion inaccurately, and there are personal or social biases and professional knowledge beyond ordinary people to replace common sense, common reason and common emotion. In addition, the application of common sense, common reason and common emotion in judicial adjudication is divorced from the basis of facts, excessive use and other problems. In order to integrate common sense, common reason and common emotion reasonably into the judicial process, it is necessary to pay attention to and improve the key issues. First of all, strengthen the professional quality and skill level of judicial staff, so that they can correctly treat common sense, common sense, common sense, and reasonable use. Secondly, the judicial personnel are required to clarify the relationship between reasoning and argument, to be reasonable under the legal norms, and to reasonably understand the law and implement the law. Third, we should standardize the use of common sense, common reason and common emotion. However, due to the diversity of similar cases, there are still more sufferings. Finally, we should pay attention to the role of judicial precedents, which collect the wisdom of the people and stand the test of the people and history. Take into account the reality of the situation and what people agree on, and then take all the factors into account and make a decision that is legal and reasonable.