論“同案不同判”現象的法理邏輯及其因應

On the Legal Logic of “Identical Lawsuits with Distinct Judgment” and Its Response

“同案不同判”現象引發公衆不滿，追求“同案同判”似乎成了解决該問題的“靈丹妙藥”。然而“同案同判”要求的背後，隱含了這樣的預設：每一個案件都存在一個唯一正確的答案，法官應該而且能够找到這個唯一正確的答案。但實際上，無論是案件事實的認定還是法律的適用，都是法官解釋的結果，判决結果還受到很多其他因素的影響，並不存在一個唯一正確的答案。“同案不同判”具有合理性，與其他案件相比，任何一個案件都必定同時包含著“同判”與“不同判”，區別僅在程度上。事實上，公衆不滿的並不是“不同判”，而是判决無法令人信服，原因在於判决書沒有充分說理，法院真正要做的，是用充分的說理來贏得公衆對“不同判”的認同。

The phenomenon of “identical lawsuits with distinct judgment” causes public discontent, and the pursuit of “according consistent judgments to similar cases” seems to be a panacea to solve this problem. However, the premise behind the requirement of “according consistent judgments to similar cases” is that: every case has a unique correct answer, and the judge can find. But in fact, whether the fact of the case or the application of the law, which is the result of the interpretation of the judge, besides the judgment result is also affected by many other factors, there is not a single correct answer. “Identical lawsuits with distinct judgment” is reasonable, any case contains “the same judgment” and “different judgment”, the difference is just the degree. The fundamental reason why the publics criticizes “identical lawsuits with distinct judgment” is that the judgment is not fully reasoned. To win the publics approval, what the court should do is to reason things out sufficiently on “different judgment”.