法官能动性概念的引出与诠释

认识和实践法官裁量权以及理解和践行能动司法遭遇多重困境,客观上需要从法官办理案件行为及其过程的本质属性出发,认识法官在司法过程中所具有的能动性。能动的革命反映论、法律规则的知识性与非自足性理论以及诉讼认识的历史性与诉讼过程的动态性理论,是认识和发展法官能动性的理论依据。法官能动性在本质上是作为“主体”的法官对作为“客体”的案件,应当具有的有差别的能动行为及认识活动过程。相对于法官裁量权和能动司法而言,法官能动性在根本上属于认知范畴,其内容更为丰富,产生和发展以及评价方式和评价标准都具有特殊性。

On Derivation and Interpretation of the Judge Initiative

Understanding and performing the judge discretion and active judiciary encounter multiple difficul- ties, which objectively need to put forward and interpret the judge initiative. Judge has multiple motility, based on the dynamic revolutionary theory of reflection, the subjectivity of understanding and the dialectical relationship princi- ple between subject and object, humanistic significance. Judge initiative is the role of the ＂subject＂ to deal with the ＂ object＂ , and its refers to the dynamic behavior and cognition activities process. Relative to the judge discretion and activist, judge initiative essentially belongs to the category of cognition, and its content is more abundant, and its e- mergence and development are particular as well as the evaluation method and standard.