论‘认真对待规则’

发布时间：2018-05-25 08:00

本文选题：规则 + 法治　；参考：《山东大学》2011年硕士论文

【摘要】：20世纪初以来,社会学法学、现实主义法学以及批判法学派,从法律规则的不足入手对法律规则进行了猛烈地批判,法律规则作为法学的核心范畴的地位受到了冲击,更进一步法律的客观性和确定性也饱受质疑。行动中的法律,法官造法,无法司法等法律思潮,从对规则的批判开始,不断地瓦解着法治的理论和制度基础。法治的证成缺少了理论支点,法治面临无法实现的危险。尤其是,我国法治建设刚刚起步,法治赖以建立的基础却在慢慢瓦解。这就好比,一座大厦刚刚开始建设,却突然发现地基被人破坏了。因此,有必要唤起人们对‘规则’的尊重,认真的对待规则,以维护法治的基石。笔者认为在当下中国法治建设过程中应该强调规则的重要性,要‘认真对待规则’,奉行司法克制主义,合理解释和适用法律,使已经制定的规则能够得到遵守和执行,这对于指导司法实践,树立法律至上的观念,确立法律权威,从而形成现代化法治理念具有重要意义。本文包括引言和正文两部分。引言主要阐述本文的选题意义及研究现状综述。正文部分包括四章内容。第一章,阐述我们为什么要‘认真对待规则’。第一节,叙述规则的含义及其特征,意在说明本文语境所指规则的含义；第二节,阐述规则作为法律的核心要素的地位,说明规则对于法律的重要性；第三节,阐述规则对司法的规范作用；第四节,说明规则及其确定性是法治证成的基础,没有规则便没有法治的理想。第二章,从宏观、中观、微观三个层面来阐释‘认真的对待规则’的内在要求。第一节,‘认真对待规则‘要求法律至上的法治理念；第二节,‘认真对待规则’要求克制的司法意识形态；第三节,‘认真对待规则’要求尊重规则的司法制度；第四节,‘认真对待规则’要求规范的选择和适用司法方法。第三章,如何实现‘认真对待规则’。第一节,首先要求奉行‘认真对待规则’的法治理念；第二节,法律实施的过程也要‘认真对待规则’,其又包括制度、主体、程序和方法等方面；第三节,司法的结果也要满足‘认真对待规则’的要求。第四章,‘认真对待规则’的法治意义。第一节,‘认真对待规则’体现法治的制度要素；第二节,‘认真对待规则’要求制度法治先行；第三节,‘认真对待规则’是法治初级阶段的必然要求。
[Abstract]:Since the beginning of the 20th century, the sociological jurisprudence, realistic jurisprudence and critical law schools have criticized the legal rules violently from the deficiency of the legal rules, and the status of the legal rules as the core category of the jurisprudence has been challenged. Further legal objectivity and certainty have also been questioned. The law in action, the law made by the judge, the legal trend of thought such as the impossibility of judicature, from the critique of the rule of law, constantly disintegrate the theory and the system foundation of the rule of law. The evidence of the rule of law lacks the theoretical fulcrum, and the rule of law is in danger of being impossible to realize. In particular, the construction of rule of law in China has just started, but the foundation on which the rule of law is built is slowly disintegrating. It was like a building that had just begun construction only to discover that the foundation had been destroyed. Therefore, it is necessary to arouse respect for the rules and take them seriously in order to maintain the cornerstone of the rule of law. The author thinks that the importance of rules should be emphasized in the process of building the rule of law in China. We should take rules seriously, pursue judicial restraint, rationally interpret and apply the law, and make the rules that have been made possible to be observed and enforced. It is of great significance to guide judicial practice, establish the concept of law first, establish legal authority and form the modern concept of rule of law. This paper includes two parts: introduction and text. The introduction mainly describes the significance of this topic and the status quo of the review. The text includes four chapters. The first chapter explains why we should take rules seriously. Section I, the meaning and characteristics of the rules, is intended to explain the meaning of the rules referred to in the context of this article; section II, the status of rules as the core element of law, the importance of rules to the law; section III, The fourth section explains that the rule and its certainty are the basis of the rule of law, and that there is no rule of law without the ideal of the rule of law. The second chapter, from the macro-level, meso-level and micro-level to explain the internal requirements of "take rules seriously". Section I, "take rules seriously", calls for the rule of law to prevail; section II, "take rules seriously", a judicial ideology that requires restraint; section III, "take rules seriously", a system of justice that requires respect for rules; and section IV, 'take rules seriously' requires the choice of norms and the application of judicial methods. The third chapter, how to realize 'take rules seriously. Section I, first of all, requires the pursuit of the concept of "taking rules seriously"; section II, the process of law enforcement, which includes institutional, subject, procedural and methodological aspects; and section III, "taking rules seriously". The outcome of the administration of justice should also meet the requirements of 'take the rules seriously'. Chapter four discusses the significance of rule of law by taking rules seriously. The first section "take rules seriously" reflects the institutional elements of the rule of law; the second section "taking rules seriously" requires the system to rule by law first; the third section "taking rules seriously" is the inevitable requirement of the primary stage of rule of law.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D90

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