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规律性与社会性皆是司法的基本属性,作为法律适用的司法过程需要遵循司法的一般性规律,作为社会治理的司法则应在国家治理体系现代化建设中扮演重要角色。司法之规律性与社会性的矛盾需要放置于司法功能的角度进行调和。实际上,司法首先是一种判断权,并通过判断实现对社会正义的矫正,在正义矫正的过程中,人权保障上升为司法的首要价值。人权保障价值的植入,为司法权范围之拓展及其程序的设计提供正当性基础和界限,也即司法可基于人权保障的需要而参与社会治理,而参与社会治理也应止于人权保障的限度。
Both regularity and sociality are the basic attributes of the judiciary. Judicial process, as the law applicable, needs to follow the general law of justice. Judicial, as the social governance, should play an important role in the modernization of the state governing system. The conflict between the regularity of law and sociality needs to be reconciled in the perspective of judicial function. In fact, judicature is first and foremost a right to judge, and through the judgment to realize the correction of social justice, the protection of human rights has risen to the primary value of the judiciary in the course of justice rectification. Implantation of the safeguarding of human rights provides the justified basis and boundary for the expansion of the scope of judicial power and the design of its procedure. That is, the judiciary can participate in social governance based on the needs of human rights protection, and participation in social governance should also be limited to the protection of human rights limit.