中国当下社会舆论于法律适用之影响研究

发布时间：2018-12-20 22:37

【摘要】：随着我国传媒事业的不断发展和网络媒体的盛行，社会舆论对法律适用的影响力也日趋扩大。而随着“法治国家”观念不断深入人心，对法律适用的重视程度也在不断提高。社会舆论与法律适用之关系研究日显重要性。社会舆论是公众关于现实社会以及社会中的各种现象、问题所表达的信念、态度、意见和情绪表现的总和，对社会发展及有关事态的进程会产生诸多影响。法律适用是指国家机关及其工作人员依照其职权范围把法律规范应用于具体事项的活动，在中国大陆语境中，特指拥有司法权的机关及司法人员依照法定方式把法律规范应用于具体案件的活动。社会舆论与法律适用这二者之间客观上存在着契合与冲突。近年来我国发生了许多社会舆论影响法律适用的典型案例。社会舆论对法律适用的正面效应主要是：为法官之适用法律提供多元参考；有利于公平正义的实现；是民众行使司法监督权的途径。而当社会舆论偏离应有界限后则会对法律适用产生负面影响，不恰当的社会舆论监督会影响法律适用的公正性与权威性。近年的典型案例折射出我国在法官独立审判与新闻法治化问题上仍然存在着诸多问题：如程序正义与实体正义失衡；舆论与司法之间缺少良好的沟通渠道；新闻法治化任重道远。对典型案例的剖析昭示，，为了应对社会舆论监督与法律适用关系上存在的混乱局面，须寻求二者间价值的平衡点，构建二者良好互动的机制。我国目前社会舆论所蕴含的言论自由仍处于劣势，宽容社会舆论，尊重表达自由，依然是我们必然的选择。同时，也应当不断重视程序正义的价值。因此，应当完善规制社会舆论的法律法规，实现法官的精英化与独立化，构建二者间良好沟通的机制。
[Abstract]:With the continuous development of media and the prevalence of network media in China, the influence of public opinion on the application of the law is expanding day by day. With the concept of "country ruled by law", the importance of the application of the law is increasing. The research on the relationship between public opinion and the application of law is becoming more and more important. Public opinion is the sum of public beliefs, attitudes, opinions and emotional expressions about the real society and all kinds of phenomena in the society, which will have many influences on the social development and the process of related events. Legal application refers to the activities in which state organs and their functionaries apply legal norms to specific matters in accordance with their terms of reference, in the context of the mainland of China, Especially refers to the judicial authorities and judicial personnel in accordance with the legal means of the application of legal norms in specific cases. There is an objective agreement and conflict between the public opinion and the application of law. In recent years, there have been many typical cases of public opinion affecting the application of the law. The positive effects of public opinion on the application of the law are as follows: to provide multiple references for the application of the law to judges; to facilitate the realization of fairness and justice; and to be the way for the public to exercise the right of judicial supervision. However, when public opinion deviates from its proper limits, it will have a negative impact on the application of the law, and improper supervision of public opinion will affect the fairness and authority of the application of the law. The typical cases in recent years reflect that there are still many problems in the independent trial of judges and the rule of law of news in our country, such as the imbalance between procedural justice and substantive justice, the lack of good communication channel between public opinion and judicature; The rule of law in news has a long way to go. The analysis of typical cases shows that in order to deal with the confusion in the relationship between the supervision of public opinion and the application of law, it is necessary to seek the balance of value between the two and to construct a good interactive mechanism between them. The freedom of speech contained in public opinion in our country is still at a disadvantage at present. It is still our inevitable choice to tolerate public opinion and respect freedom of expression. At the same time, we should attach importance to the value of procedural justice. Therefore, we should perfect the laws and regulations to regulate public opinion, realize the judge's excellence and independence, and construct a good communication mechanism between them.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D90-052

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