我国成文法体制下判例嵌入司法场域的机理

判例经由法律职业共同体的具体运用实践,正在全面且深刻地嵌入我国司法场域。这种嵌入过程或现象具有与域外判例实践所不同的独特机理。恰当把握这一机理需要突破域外以判例"效力"为核心的理论认识,转变为以判例"效用"为导向。这一机理包括嵌入形态、嵌入动力与嵌入主线三个方面。嵌入形态体现为判例智识性信息泛在形态向选择形态的转化;嵌入动力体现为判例自发性运用与建构性运用的耦合;嵌入主线体现为判例运用的组织意图对个体意图的吸纳。揭示这一机理不仅有助于加深对我国判例运用现象的认识,把握判例运用现象的特征和规律,从而有助于理性地建构和完善中国特色判例制度,同时也有利于促成判例运用成为一种惯常化的司法习性。

Mechanism Behind the Function of Setting Precedents in Judicial Field Under Statutory Law System

Precedents are embedding into the judicial field of our country comprehensively and deeply through the practice of legal profession community. This kind of embedding process or phenomenon has its unique mechanism which is different from the practice of extraterritorial cases. To grasp this mechanism properly, it is necessary to break through the theoretical understanding of extraterritorial cases which takes "potency" as the core, and change it into "utility" as the guidance. This mechanism includes three aspects: embedding form, embedding motive force and embedding main line. The embedding form is the transformation from the ubiquitous form of intellectual information of case to the selective form;the embedding motive force is the coupling of spontaneous and constructive application of case;the embedding main line is the absorption of individual intention by organizational intention. Revealing this mechanism will not only help to deepen the understanding of the phenomenon of the application of precedent in our country, as well as grasp the characteristics and rules of the phenomenon,thereby helping to rationally construct and perfect the system of precedent with Chinese characteristics, but also help to make the application of precedent a judicial practice.