论文部分内容阅读
能动司法延续了个案监督的争议。泉州中院人大代表协助调解的创新,可以看作能动司法的一个个案。法院邀请人大代表参与调解,要以法院介入社会为前提,违背司法中立、被动的立场。尤其人大代表的介入会使诉讼调解更加偏离法律,更勿论实现司法独立和人大监督共容的理想。作为人大代表参与纠纷解决依据的《宪法》第76条,本质上是提倡性条款,其内容也主要是人大监督权的延伸。归根到底,人大代表的身份不仅不适合参与诉讼调解,也不适合参与纠纷的解决。能动司法引入其他力量只能化解对司法无能的指责。各种权力应该根据其本质而运作。
Active judicial continuation of the case supervision controversy. Quanzhou Intermediate People’s Congress to help mediate in innovation, can be seen as a case of active justice. The court invited people’s deputies to participate in the mediation. It is necessary to take the court’s intervention in society as a precondition and to run counter to the neutral and passive judiciary. In particular, the intervention of deputies will make the mediation of litigation even more deviate from the law, not to mention the ideal of achieving the judicial independence and supervising the NPC. Article 76 of the Constitution, which is the basis on which people’s deputies participate in dispute resolution, is essentially an advocacy clause whose content is mainly an extension of the supervisory power of the NPC. In the final analysis, the identity of deputies is not only not suitable for litigation mediation, nor is it suitable for participating in the resolution of disputes. Introducing other powers into active justice can only defuse accusations of incompetence in the judiciary. Various powers should operate according to their nature.