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近年来有关平等权的案件逐渐增多,但由于缺少相应的法学理论支撑,最高法院没有颁布相关司法解释,司法实践也没有形成相关判例,各地法院的审查方法并不统一。从比较法角度看,美国平等审查法理对世界上其他国家的法律实践影响很大。因此许多学者主张引入美国平等审查法理来建构中国的平等审查模式。但由于中美法治的社会背景差别较大,对于美国的平等审查法理适用于中国需要做出取舍。其中,有关平等审查的分析框架可以为司法审判提供审查的路径与方法,有助于确立审查的步骤和程序,提高裁判的统一性。而对于美国平等审查法理中的审查基准难以直接运用于中国的司法实践,因此需根据中国的制度框架、法律文化和法治发展阶段来建立自己的基准体系。
In recent years, there have been more and more cases of equal rights. However, due to the lack of corresponding legal theory support, the Supreme Court did not promulgate relevant judicial interpretations and judicial practice did not form relevant jurisprudence. The examination methods of courts in various places were not unified. From the perspective of comparative law, the U.S. equality examination principle has a great influence on the legal practice of other countries in the world. Therefore, many scholars advocate the introduction of the U.S. equality examination principle to construct China’s equal examination mode. However, the social background of the rule of law in China and the United States is quite different. Therefore, it is necessary to make a choice between applying the principle of equality examination in the United States to China. Among them, the analysis framework of the fair examination can provide the examination trail and method for the judicial trial, and help to establish the examination steps and procedures and improve the uniformity of the referee. However, it is difficult to directly apply the review standard in the U.S. equality examination principle to China’s judicial practice. Therefore, it is necessary to establish its own benchmark system in accordance with the institutional framework, legal culture and the stage of rule of law in China.