为了追求司法公正,刑事裁判就需要力求具有说服力,即裁判必须能够为其受众所接纳。然而,由于司法过程并不是一个像古典法学家所期望的那样“将事实付诸于法律”的客观过程,而是一个充斥着司法官本人主观意志的结果,而这一主观意志在多大程度上能够忠实地体现司法的客观公正性,就是公众在面对裁判结论时的最大疑问,因而司法裁量权也就成了拷问裁判可接受性的制约性因素。对这一问题的理论反思旨在审视司法活动中司法裁量权的存在空间及其表现形式,以求合理规范裁量权的行使,增加裁判的可接受性,最终达致社会和谐。 In pursuit of justice, criminal judgments need to be convincing, that is, referees must be able to accept their audience. However, since the judicial process is not an objective process like the classical jurists expected to “put facts into law,” it is an outcome that is filled with the subjective will of the Judge himself and how much the subjective will To the extent that faith can faithfully reflect the objective and fairness of the judiciary is the biggest doubt the public face in the conclusion of the adjudication. Judicial discretion has also become a factor that restricts the acceptability of adjudication. The theoretical reflection on this issue aims at examining the existence space and manifestations of judicial discretion in judicial activities so as to reasonably regulate the exercise of discretion, increase the acceptability of judgments, and ultimately achieve social harmony.