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法治建设需要法官建立一种职业共同体,而这种共同体的灵魂就是司法范式。司法范式规定了法官处理纠纷的共同的基本理论、观点和方法。通过司法权处理纠纷有两大途径,即审判和调解。在本体论方面,审判强调主客关系,强调法官在明辨是非的基础上适用法律;调解尊重当事人的自我意识,对案件事实的把握不再是首要问题。在方法论方面,审判从命题出发,难以避免法律作为一门科学本身存在的形而上学性;调解将当事人引入对话辩证法领域,让当事人在平等对话和辩证思维的基础上,达成基于理由的共识。在认识论方面,审判坚持证据规则,解决什么是符合法律规定的相对真理的问题,但是,其主观与客观完全统一的目标只是理想追求;调解从有利于和谐社会建设出发,解决什么是当事人接受的绝对真理的问题,以当事人的陈述是否一致,来判断认识是否具有真理性。
The construction of law requires judges to establish a professional community, and the soul of such a community is the judicial paradigm. The judicial paradigm defines common basic theories, perspectives and methods for judges to handle disputes. There are two ways to handle disputes through judicial power: trial and mediation. On the ontological side, the trial emphasizes the relationship between subject and object, emphasizing that the judge applies the law on the basis of discrimination between right and wrong; mediating respect for the self-awareness of the parties and handling the facts of the case is no longer the primary issue. In terms of methodology, judging from the proposition, the trial can hardly avoid the metaphysical nature of the law as a science itself. Mediation introduces the parties to the field of dialectics of dialogue so that the parties can reach consensus on the basis of equality and dialectical thinking on the basis of reason. In epistemology, the trial adheres to the rules of evidence and resolves the question of what is the relative truth in conformity with the law. However, the goal of completely subjective and objective unity is only the ideal pursuit. From the perspective of building a harmonious society, mediation should solve what is accepted by the parties The issue of absolute truth, to the parties’ statements are consistent, to determine whether the understanding of truth.