THE REAL PLIGHT BETWEEN THE JUDICATURE AND PUBLIC OPINION AND ITS EXTRICATION IN TERMS OF JURISPRUDENCE

司法與民意關係的現實困境與法理破解

In this transitional phase, a daunting challenge posed to the Chinese judicature is the complicated interaction between the trial court and the public, when it comes to cases that gain popular attention. The key issues lie in both the authority of the judicial judgment and the public’s faith in it. It is undoubtedly of crucial significance to arrive at a sound relationship between a society espousing democracy, and proper legal expressions among the public and legal rule. Specialists argue that public opinion stands as no replacement for professional judgments made by judges, while advocates of public opinion state that any judicial judgment should take into consideration the ideas and thoughts of the public. For advocates of responsive law, the court should respond favorably to reasonable public opinions without abandoning the foundation of its independent trials. In our opinion, considering the functional designs of the judicature in the constitutional system and the reality of public opinion in contemporary China, responsive law is preferable to the other two alternatives so as to provide a real solution to the present dilemma involving the interaction between the trial court and public opinion.經由一系列全民高度關切的個案而引發的法院審判與民意訴求之間的角逐與較量成為轉型時期司法所必須直面的難題，其核心的法理學問題在於司法裁判的權威和公信力，如何在一個民主法治的社會中與大眾的法律表達形成一種良性互動的關係。專業論者主張民意並不能替代法官在案件中的專業主義判斷，民意論者主張司法判決應該逕行吸納民眾的見解，回應論者主張在法院獨立審判的基礎上回應一定時期內的民意。基於司法在憲法體制中的功能設計和當今中國民意表達的現實問題，中國應該以＂回應型＂司法哲學處理司法與民意之間的關係，這將會促成司法之殤與民意之難現實困境的法理破解。