| 严格依法办事：经由形式正义的实质法治观 |
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| 引用本文： | 江必新. 严格依法办事：经由形式正义的实质法治观[J]. 法学研究, 2013, 0(6): 30-43 |
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| 作者姓名： | 江必新 |
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| 作者单位： | 中南大学法学院 |
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| 摘 要： | 依法办事理念作为法治公信力建设的关键所在,应当受到认真对待,在解释学的阐述下,其将展现出全新的、非简单化的意蕴。在严格依法办事的主体上,应在执法者、司法者之外增加公民与其他社会主体,并坚持一种“交互主体性”的法律实施观。在严格依法办事的过程中,应把握好严格规则主义与法律解释、法律效果与社会效果、形式正义与实质正义的关系,并创新法律实施机制。在严格依法办事的对象上,应处理好“恶法”实施问题及法律体系与体系外规范的关系,并开展依法治法、法典化运动,重点解决有法难依问题。严格依法办事的良性运作需要我们在法治现实主义的引导下,坚持良法之治,走一条“经由形式正义的实质法治”之路。
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| 关 键 词： | 依法办事 形式正义 实质正义 实质法治 法治现实主义 |
Acting in Accordance with the Law: Substantive Rule of Law in Way of Formal Justice |
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| Abstract: | "Acting in accordance with the law" is the key to build the public reliance of the rule of law, and should be treated seriously. By the elaboration of hermeneutics, it will show non-simple and new meanings. For its subject, the law-executors, judiciary as well as citizens and other social subjects should all act strictly in accordance with the law, and a concept of intersubjectivity in the implementation of the law should be insisted. As for its course, when we act strictly in accordance to the law, we should handle the relationships between severe regularization and legal interpretation, legal effect and social effect, also formal justice and essential justice carefully, furthermore, innovate the mechanism to implement the law. For the object of "acting in accordance with the law", we should deal with the implementation of the evil law, and dispose the relationship between the legal system and the norms outside of the law. Then we can rule the law by law, launch the codifying movement, and solve the problem that "even when there is a law, we still can''t abide by it". The good operation of "acting in accordance with the law" needs us to keep to the realism of rule of law, realize the transformation of legal studies and practices, insist on the rule by good law, and pursue the essential rule of law by way of formal justice. |
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| Keywords: | acting in accordance with the law formal justice substantive justice substantive rule of law realism of rule of law |
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