法官能动性与公正再论

法院的判决宣示着法的精神,引导着民众的行为.诉诸于法院各种诉讼请求,即是将各种矛盾呈现在法官面前.法官必须判断何种诉求为正当,只有当案件事实符合法律规范的构成要件,且案件事实中蕴涵的法律价值和所适用的法律规范的价值取向相一致时,才可以依据该法律规范对案件事实作出判决.法官在运用国家的制定法以回应民众的要求时,将一些明显不当的有违民意的规定加以过滤,能动地对制定法加以填充修正.刘荣军教授亦言:"处于社会与国家立法机关之间的司法,应当以并不完整的法律作为基本的支撑,寻找制定法之外的法源,将社会的正义、公平的观念和价值导入司法程序之中,创造出能够解压、还原法律本意的规则,以作为裁判的依据."

Another Study on the Judge's Motility and Justice

A sentence from the court represents the spirit of the law and leads the common people's conduct.A series of lawsuit appealed to the court means to make the judge face every contradiction.What the judge has to do is to verdict which lawsuit is legitimate.A sentence is made according to the law criterion and the fact of the case when the fact of the case accords with component elements of the law criterion besides their consistency to the law value.When a judge responses to the common people's requests in practising the statute law,he or she will amend or complement the law actively after filtrating the improper regulations.Just as professor Liu Rongjun said,"Judicature which is between the society and legislature should seek for other legal bases besides the statute law.The idea and value of social justice and fairness should be introduced to the judicial procedure to create a rule which can decrease pressure and return the original meaning to the law.Thus that rule can be used as the base of verdict.