刑事法律中实体正义与程序正义的博弈

中国学术界关于实体正义与程序正义究竟谁应为优先者之争似乎已经陷入了二律背反。一方面 ,主张实体正义优先的学者不得不面对众多深具远见的学者对“看得见的正义”的迫切呼吁以及现实中恣意的“人治”给司法公正性带来严重损害的尴尬 ;另一方面 ,主张程序正义优先的学者也难以回避由于我国刑事立法宁粗勿细、宁疏勿密的原则给法律适用带来的难题。在刑事法律中实体正义与程序正义的博弈中 ,如何能够使得两者不会由于陷入“纳什均衡”而导致法律功利目标的削弱 ,就成为我国能否真正走向法治化的关键。

Game Between Substantial Justice and Procedural Justice in Criminal Legislation

In the academic circles of China, the controversy over which is preferable, substantial justice or procedural justice, has seemed to come to a paradox. On one hand, those scholars who prefer substantial justice have to face the urgent appeal of those foresighted scholars for the observable justice, and the awkward position of the judicial justice damaged by the rule by men. On the other hand, those who prefer procedural justice can hardly ignore the problem that the law enforcement is influenced by the principle of China's criminal legislation that shortness is preferable to accuracy. How to prevent the substantial justice and procedural justice from plunging in the Nash Equilibrium, which will lead to the impairment of the law's utility, has become a key point in our process of rule of law.