“告”与“理”关系解读

在法治社会中,司法权具有消极性和终局性,即对于法律纠纷应实行不告不理和有告必理。对我国司法实践中所表现的"告"与"理"之间的四大关系———不告不理、不告而理、告而不理和有告必理做了分析,并对司法权的运作原则与司法公正、司法的社会"平衡器"功能之间的关系进行了阐述,以纠正当下认识和实践上的偏颇。

Explication of Relationship Between "Complaint" and "Trial"

In the society of rule by law the judicial power has two qualities of negativity and supremacy, that is, it should practice the two principles-no trial without complaint and trial with complaint in regard to law disputes. This paper analyses four relations of "complaint" and "trial" in the judicial practice of our country-no trial without complaint,trial without complaint,no trial with complaint,trial with complaint, and expounds the relationship between operation principles of judicial power and judicial justice and the function of social "equilibrium machine" of judiciary. The discussion above is to rectify present improperness in jurisdictional cognition and practice.