从合法律性到情境合理性——警察用枪规范进路的重塑
发布时间：2019-06-25 12:25
【摘要】：在强调基本权利防御权功能的逻辑下,传统进路以规范形成为起点,为警察用枪构筑起以程序、条件和情形为主要内容的规范体系,并承认严密的司法审查可对警察用枪行为作出"正确"评价,借此实现合法律性的控制。然而,既有规范并未重视时间和危险的压力情境下警察用枪的真实状态,缺乏合理的类型化梳理,加之警察用枪话语之中包含了政策调整和"舆论审查"的影响,使规范与实践之间的张力日益凸显,用枪的正当性标准亦难以统一。若对警察用枪过程仔细考察,这一独特的"执行过程"并非一般的行政过程可以覆盖,"电车难题"、风险防控与情境决策等当代议题则有助于理解其独特性。基于此,或可对警察用枪过程采取"情境化"构造,以情境(客观)合理性为标准为警察提供合适的规范指引,借此实现对合法律性的功能弥补,修正既有规范的局限。
[Abstract]:Under the logic of emphasizing the function of the defense right of basic rights, the traditional approach takes the normative formation as the starting point, constructs the normative system with the procedure, condition and situation as the main content for the police to use the gun, and acknowledges that the strict judicial review can make the "correct" evaluation of the police's gun behavior, so as to realize the control in accordance with the law. However, the existing norms do not pay attention to the real state of the police gun under the pressure of time and danger, and lack of reasonable typed combing. In addition, the police gun discourse contains the influence of policy adjustment and "public opinion review", which makes the tension between the norm and the practice increasingly prominent, and the legitimacy standard of the gun is difficult to unify. If the police gun process is carefully investigated, this unique "execution process" can not be covered by the general administrative process, "tram problems", risk prevention and control and situational decision-making and other contemporary issues are helpful to understand its uniqueness. Based on this, it may be possible to adopt the structure of "situational" in the process of police gun use, and to provide appropriate normative guidance for the police according to the standard of emotional (objective) rationality, so as to make up for the function of concordance with the law and correct the existing norms.
【作者单位】： 上海市公安局;中国人民公安大学国家生态安全法治研究中心;中国人民公安大学法学院;
【基金】：中国法学会2014年度部级法学研究课题“反恐反暴形势下规范警察用枪问题研究”(CLS[2014]D028)的阶段性成果
【分类号】：D922.14
，
本文编号：2505682
[Abstract]:Under the logic of emphasizing the function of the defense right of basic rights, the traditional approach takes the normative formation as the starting point, constructs the normative system with the procedure, condition and situation as the main content for the police to use the gun, and acknowledges that the strict judicial review can make the "correct" evaluation of the police's gun behavior, so as to realize the control in accordance with the law. However, the existing norms do not pay attention to the real state of the police gun under the pressure of time and danger, and lack of reasonable typed combing. In addition, the police gun discourse contains the influence of policy adjustment and "public opinion review", which makes the tension between the norm and the practice increasingly prominent, and the legitimacy standard of the gun is difficult to unify. If the police gun process is carefully investigated, this unique "execution process" can not be covered by the general administrative process, "tram problems", risk prevention and control and situational decision-making and other contemporary issues are helpful to understand its uniqueness. Based on this, it may be possible to adopt the structure of "situational" in the process of police gun use, and to provide appropriate normative guidance for the police according to the standard of emotional (objective) rationality, so as to make up for the function of concordance with the law and correct the existing norms.
【作者单位】： 上海市公安局;中国人民公安大学国家生态安全法治研究中心;中国人民公安大学法学院;
【基金】：中国法学会2014年度部级法学研究课题“反恐反暴形势下规范警察用枪问题研究”(CLS[2014]D028)的阶段性成果
【分类号】：D922.14
，
本文编号：2505682
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