现代诉讼的法理性透视

摘要

Viewed from the emergence and development of litigation, which is a typical form of the public relieves in a society, the history of human civilization has experienced a process of "the negation to negation", that is, the negation to the ignorant and barbarous dispute-resolving manner when public relief replaced private relief and the negation to judge's arbitration and centralizing of power when the "adversary system" replaced the "inquisitorial system". According to the nature of the social conflicts, the design for the litigation system of modern society can be mainly divided into three types: civil procedural system, criminal procedural system and administrative procedural system which have the common principle of law-impartiality and equity which are expounded in this essay from two aspects: the structure of procedure and the operating of procedure. Lastly, a review is made on value-orientation of the modern litigation through pondering over the leading of "agreement mechanism" into litigation, and points out the significance of advocating individual autonomy.%现代社会的诉讼制度设计根据社会冲突的性质可主要划分为三种类型。即民事诉讼制度、刑事诉讼制度和行政诉讼制度。这三大诉讼在程序设计上有着共通的法理，即公正与衡平。文章从程序结构法理以及程序运作法理这两个方面对此进行了论述。随后，本文通过对诉讼中引入“合意机制”的思考，对现代诉讼的价值导向进行了反思，指出弘扬个体自治的深远意义。