法官的审判理念与实践

法官在审判活动中既需要把握体现在法律规则和司法制度中的理念,又需要通过自己的理念进行事实判断和法律解释。法官之所以有智慧,并不是因为他有理性,可以掌握一些法律的原理并根据这些原理处置他们的纠纷案件,而是因为法官能依据情景的可能性并能根据这种案件的实际状况来采取措施。一名称职的职业法官不应再限于法律知识学习,他要的是用智慧去追求法律整体的逻辑一贯性和条文之间的关联性,注重对规范合理性涵义的推敲与综合操作,留心于确认法条背后的共同原则和指导原理。

The Judges' Adjudication Belief and Practice

In trial, the judges not only need to handle the belief embodied in legal rules and judicial system, but also need to make factual judgment and legal interpretation according to their own belief. The judges possess wisdom, not because the are reasonable enough to master some legal principles which can be used to handle their cases, but because they may take appropriate measures according to the probability of the situation of the cases. A competent judge should not confine himself in learning the legal knowledge, and what he needs to use his wisdom to pursue the logic coherence of the whole of law and the correlation of the articles of law, stressing the comprehensive operation of reasonable meaning of the rules after deliberation and paying attention to identifying the common principles and guiding doctrines behind the articles of law.