现代诉讼的本质:全面理性的规范沟通

纠纷的成因是交往失败,而诉讼是重新交往解决纠纷的一种方式。将诉讼置于交往视野下,诉讼的沟通性便得以显现。无论是民事、行政还是刑事诉讼,均渗透着立足言语、实现主体间沟通的理念。诉讼通过外在规范特性保证主体间的沟通顺利进行,没有建制化程序的外在保障,沟通难以成效。诉讼的内在规范性是对诉讼规范性内涵的丰富,是一种内在的交往预设程序。经过对规范价值的内在化,诉讼交往主体形成自我约束,对诉讼规则、交往预设自愿主动承受,促进共识的实现和纠纷的解决。可以说,现代诉讼克服了传统职权主义模式或者当事人主义模式的片面理性,追求客观世界、主观世界和规范世界相融通的全面理性,保障司法公正、令人信服司法,达到司法真正权威。因此,诉讼区别于其他纠纷解决机制的最大不同,在于诉讼的本质是全面理性的规范沟通。

The Nature of Modern Litigation:Comprehensive and Rational Normative Communication

The cause of disputes is the failure of communication,and litigation is a way of resolving disputes through re-communication. By putting litigation in the perspective of communication,the communicative nature of litigation can be revealed. In civil litigation, administrative litigation or criminal litigation, the concept of communication between subjects based on speech is permeated. Litigation makes sure the communication between subjects smoothly through external normative nature.Without the external guarantee of the institutionalized procedure,it is difficult to achieve results in communication. The inherent normative nature of litigation is to enrich the connotation of the normative nature of litigation, and it is an inherent institutionalized procedure. After the internalization of normative value,communication subjects of litigationform self-restraint. They voluntarily accept the rules of procedure and expectations of communication. This promotes consensus and dispute resolution. We can say,the modern civil litigation overcomes the one-sided rationality of the traditional inquisitional system or the adversarysystem and pursues the comprehensive rationality of the integration of the objective world,the subjective world and the normative world. In this way,judicial impartiality can be guaranteed and justice is convincing and the true authority of justice can be realized. Therefore,the most notable difference between litigation and other dispute resolution mechanisms is that the nature of litigation is the normative communication with overall rationality.