制度利益衡量的逻辑

司法审判特别是疑难案件审判往往需要进行利益衡量,其中制度利益的衡量极为关键。制度利益具有现实性、具体性、广泛性等特性。与法律制度构造的类型化相适应,制度利益需要区分内部不同的具体类型进行衡量。在利益衡量时,需要对潜藏于法律制度背后的制度利益作深入剖析,可分为两个步骤:一是理清核心利益;二是以制度涉及的社会广泛性为依据,对制度所涉具体利益作广泛的铺陈与罗列。应当与社会公共利益相协调是制度利益衡量的基准,它提出两个要求:第一,在复数制度中选择妥当制度,避免误入歧途;第二,结合法律情境探寻制度利益,避免利益误判。从功能上讲,制度利益衡量既是牵引法律制度演进的内在动力,又是判断法律制度效力的实质依据。

Logic in Weighing System Interests

Interests need to be weighed in justice,especially the trial on hard case,weighing system interests of which is great significance.The system interests have the characteristics of actuality,concreteness,broadness,etc..The system interests need to be weighed based on the concrete different types which are classified according to their internal contents in order to adapt to the categorization of legal system construction.Weighing interests needs to deeply analyze the system interests behind legal system and the following two steps can be adopted:one is to clarify the essential interests;the other is to elaborate extensively and list the concrete interests involved in the system on the basis of the system concerned social broadness so as to weigh interests appropriately.The criteria of weighing system interests are to be coordinated with public interests,which claim two demands:one is to choose an appropriate system in plural systems to avoid going astray;the other is to explore system interests combining with legal context to avoid erroneous judgment of interests.According to their functions,weighing system interests is the internal motive for leading the development of legal system and also the substantial standard of judging legal system effect.