论文部分内容阅读
转型中国的现实决定了中国行政审判法官在致力于完成克制司法这一现代性课题之时需承担起能动司法的任务。在常规案件中,以克制为基本立场,追求法律形式理性,是法治的应有之义,也是行政国时代尊重专业化行政的必然结果。法官对法律形式理性的坚持,自觉抵制法外因素的影响,有利于防止司法腐败,强化民众对法律的权威性印象。在疑难案件中,能动司法克服人类理性的局限性,有效回应转型社会需求,并通过个案审查的形式逐步确立对行政权力的全面控制,从而完善法律之治。然而,能动司法有其难以避免的正当性和能力不足问题,在中国行政强势的背景下,甚至可能沦为行政机关借以实现行政目标的工具,因而需谨慎为之。
The reality of China’s transition determines that China’s administrative trial judges must shoulder the task of active administration of justice when they are committed to completing the modern issue of restraining the administration of justice. In conventional cases, the basic stance of restraint and the pursuit of rational legal forms are the due meanings of the rule of law and the inevitable result of respect for professional administration in the era of the administering power. Judge’s adherence to the rationality of legal forms and the conscious rejection of the influence of extrajudicial elements are conducive to preventing judicial corruption and strengthening people’s impression of the authority of law. In difficult cases, motivated justice overcomes the limitations of human rationality, effectively responds to the needs of the transitional society, and gradually establishes full control of administrative power through case-based examination so as to improve the rule of law. However, active justice has its inevitability of legitimacy and lack of capacity. Under the background of China’s strong administration, it may even become a tool used by administrative organs to achieve its administrative goals. Therefore, caution should be exercised.