治理论还是法治论——当代中国乡村司法的理论建构  

The Two—layered Dual Structure of Rural Justice in Contemporary China

作　　者：陈柏峰[1] 董磊明[2] 

机构地区：[1]中南财经政法大学法学院 [2]北京师范大学哲学与社会学学院

出　　处：《法学研究》2010年第5期34-46,共13页Chinese Journal of Law

基　　金：本文是国家社会科学基金青年项目"民主法制进程中的乡村司法制度建设研究"(批准号09CFX060)的成果

摘　　要：当前乡村司法呈现出双二元结构形态:基层法官的司法有着法治化和治理化两种形态,乡村干部的司法则是治理化形态。综合考量乡村社会变迁及其所受到的结构性约束,双二元结构形态可以呼应乡村社会的司法需求,回应乡村纠纷的延伸性和非适法性,适应中国乡村的经济基础。在很长时间内,乡村司法都应当在法治化和治理化之间保持某种平衡。In a broad sense, the rural justice consists of grassroots judges＇ judicature and village cadres＇ quasi--justice. There are two main theoretical approaches on the rural justice in current literatures, one is the governance theory, and the other is the theory of formal legality. They are both biased because of their biased empirical basis. The governance theory is hard to face the radi- cal changes taking place in current rural society. The theory of formal legality lacks of comprehen- sive understanding of the great rural social changes, and ignores the structural constraints of the rural social changes. To construct the rural justice theory, we should mainly focus on the common agricultural rural areas, where trade and industry are under--developed, and pay attention to oth- er types of rural areas as well. Before constructing the rural justice theory, we should understand the patterns and actual state of rural justice. At present, rural justice shows a dual structure of two--layered. It has two levels, that is, the dual structure in micro--level existing in the grassroots judges＇ judicature, and the dual structure in macro--level composed of the grassroots judges＇ judicature and village cadres＇ quasi--justice. There are two patterns in the grassroots judges＇ judicature, one is the formal legality, and the other is governance. And village cadres~ quasi--justice shows the gov- ernance pattern. There is a gap between the ＂is to be＂ aspect of the actual state of rural justice and the ＂ought to be＂ aspect of the rural justice theory. Taking rural social changes and their structural con- straints into account, the pattern of two--layered dual structure sounds reasonable. It is able to echo the judicial needs of rural communities, respond to the extension and non--legality of village disputes, and adapt to the economic basis of rural China. A two--layered dual structure theory of rural justice should be the main rural justice theory in new era. For a long time following, the ru- ral justice sh

关 键 词：乡村司法 治理化司法 法治化司法 

分 类 号：D926[政治法律—法学]