试论法律现实主义在司法裁判中的适用
发布时间：2019-01-22 09:18
【摘要】：发端于20世纪的法律现实主义运动,是美国本土最重要的法理学运动之一。这场声势浩大的现实主义运动,不仅对美国法律界产生了深远的历史影响,对于我国当下司法实践也有借鉴作用。 作为现实主义的代表人物,霍姆斯、卢埃林、卡多佐、弗兰克等人对形式主义都持批判态度。他们的观念昭示着实用主义哲学的光辉。作为现实主义运动的先驱,霍姆斯首先提出了法律的生命在于逻辑这个著名论断。现实主义法学家认同法律的不确定性,反对绝对的概念至上,持规则怀疑主义,注重法律社会目的性。我国正处于急速发展期,法律制定与社会当下现实难免出现差距。一些新问题也会不断涌现。本文通过案例分析法,论述法律现实主义的精神与司法实践观在司法裁判中的适用,来解决我国社会发展中出现的法律问题。对促进我国法治建设的进步,维护公民权利与良好的社会效应都有重要意义。 本文写作分为六个部分。 第一章、论述作为背景的法律形式主义。法律现实主义是伴随着对形式主义的批判发展起来的。现实主义法学家的观点普遍都伴随着对形式主义的反对与批判。因此,梳理现实主义的主要观点,需要对形式主义的观点进行阐述。 第二章、法律现实主义的代表人物及主要观点。通过整理现实主义法学家霍姆斯、卡多佐、弗兰克、卢埃林的观点,总结现实主义法学的主要观点即：以实用主义哲学为基础,主张法律应当立足于客观现实,注重法律的目的性,反对绝对的概念至上理论,持法律不确定性与规则怀疑主义。在论证法律现实主义法律观的基础上,论述现实主义的司法实践观：反对形式主义裁判方法的逻辑三段论,认为裁判是多种因素多重利益共同作用的结果,当利益之间发生冲突时,应让步于社会学方法,注重案件裁判结果的社会目的性。并对法官自由裁量权进行阐述。 第三章、法律现实主义在司法裁判中适用的必要性及适用类型案例分析。通过论述法律不确定性的客观存在,法律规则与现实之间差异性的存在,论述现实主义在司法裁判中适用的必要性。现实主义的适用主要表现在现实主义精神以及裁判方法的适用。本章通过案例分析法,阐述现实主义在我国裁判实践中运用的情况主要有以下几种：反对机械化、形式主义,出于对已有法律规则、条文的合理解释适用；对于法律不确定性的补救或着说出于弥补法律漏洞的适用；排除已有的法律规则,出于维护社会实质的公平和公正、公序良俗的适用：出于维护社会功德,维护社会风尚的适用。通过分析案例阐述应在何种情况下适用,和应该怎样适用。 第四章、法律现实主义在司法裁判中错误运用的可能性及原因分析。法律现实主义的适用需要依靠法官的自由裁量,法官在裁判时需要发挥主观能动性对案件事实和适用的规则进行判断。法官如果在裁判过程中滥用裁量权,对于法律现实主义的主要观点不能正确对待,就会出现滥用的危险。当法官不能用现有明确的条文解释和裁判案件时,一般会通过所谓解释的方法用某些原则或概念规则来解决。而事实与法律越是不相符合,法官的自由裁量权也就越大,若没有明确的界限和指导原则来限制,仅靠法官的自觉性或个人素质,则难免会导致滥用。本章通过案例分析,滥用的主要原因一是因对诉讼各方社会利益主次不分、价值判断错误导致的滥用,二是因越界而导致的滥用。 第五章、法律现实主义在司法裁判中运用的约束与限制。通过第四章论述得出结论,法律现实主义在司法裁判中的应用,必须在一定限度内进行。对法官自由裁量的裁判过程,要进行一定的限制。法律现实主义在司法裁判中的适用必须受到约束与限制,否则将会走向激进,导致无序的情况发生。正如卡多佐所说,他遵从社会学的方法,但并不否认其他方法的作用。完全排斥甚至否认规则,并不能真正实现法律的价值和目的。对法律现实主义的适用,要遵循以下硬性约束：要在法律范围内进行；不能与立法、司法政策、司法解释相违背；遵循程序正当原则；立足案件事实,不能妄加推测；不能与示范判例的精神相违背；不应因同情等主观因素,为补偿受害人的损失而侵犯他人利益进行适用；遵循公平正义原则；正确看待社会舆论的影响力。 第六章、总结。对新法律现实主义进行概括描述,以及前文进行总结概括。
[Abstract]:The legal realist movement, which originated in the 20th century, is one of the most important legal movement in the United States. This great realistic movement not only has a far-reaching historical impact on the legal profession in the United States, but also has a reference for the current judicial practice in our country. As the representative of realism, Homs, Luerin, Cardoso, Frank and others are critical to formalism. degree. Their idea shows the light of the pragmatic philosophy. As a pioneer in the movement of realism, Homs first put forward that the life of the law is the famous theory of logic On the other hand, the realistic jurists agree with the uncertainty of the law, oppose the absolute concept of the law, hold the rule of doubt, and pay attention to the purpose of the legal society Sex. Our country is in a rapid development period, and the legal development and the current reality of the society are inevitable. There's a lot of new problems, too. This paper, through the case analysis method, discusses the application of the spirit of legal realism and the view of the judicial practice in the judicial decision, to solve the legal questions in the social development of our country. To promote the progress of the construction of the rule of law in our country, it is important to maintain the civil rights and the good social effect. The writing of this paper is divided into six parts. Part. The first chapter discusses the method as a background. The law formalism. The legal realism is accompanied by the criticism of formalism The view of a realistic jurist is generally accompanied by a formalism. Objection and criticism. Therefore, combing the main point of view of realism needs to view the view of formalism. The point is set forth. Chapter II, the representation of legal realism On the basis of the pragmatic philosophy, the author points out that the law should be based on the objective reality, note that the law should be based on the objective reality. The purpose of the law is to oppose the absolute concept of the supremacy and the legal uncertainty. On the basis of demonstrating the legal view of the legal realism, the author discusses the realistic view of the judicial practice: the logic three-section of the method of anti-formalism, and concludes that the decision is the result of the multi-interest of various factors, and when the interests conflict, it should be made Step in a sociological approach and focus on case referees The social purpose of the fruit. Chapter three, the necessity of the application of legal realism in the judicial referees The article discusses the existence of the difference between the legal rules and the reality by discussing the objective existence of the legal uncertainty, the existence of the difference between the legal rules and the reality, and discusses the realism in the administration of justice. The necessity of application in the referees. The application of realism is mainly in the spirit of realism. In this chapter, through the case analysis method, the author expounds that the application of realism in the practice of our country's decision mainly consists of the following: anti-mechanization, formalism, for the existing legal rules, The reasonable interpretation of the provisions is applicable; for the remedy of the legal uncertainty or to the application of the remedy of the legal loophole, the existing legal rules are excluded from the maintenance of the social essence and the application of the public order and the customs: for the maintenance of social work, The application of the social fashion is to be maintained. By analyzing the case, the case should be adapted. how to apply, and how to apply it. chap. IV, that error of legal realism in the administration of justice The possibility and cause of the application. The application of the legal realism needs to rely on the discretion of the judge, and the judge needs to play a subjective initiative in the case when the judge The judgment of the real and applicable rules. If the judge abuses his discretion in the process of the decision, the main point of view of the legal realism is not correct. There will be a risk of abuse. When a judge is unable to interpret and judge a case with an existing clear provision, it will generally be used by a so-called method of interpretation The more the facts and laws are, the greater the discretion of the judge, and if there are no clear limits and guidelines, the judge's self-consciousness or the individual in that case of the case, the main cause of the abuse is the abuse caused by the difference between the social interests of the parties to the litigation, the value judgment error, II. Abuse due to cross-border. Chapter V, Legal Realism The restrictions and restrictions applied in the administration of justice, and through the fourth chapter, it is concluded that the legal realism is in the judicial referees. It must be carried out to a limited extent. The discretion of the judge The process of referees is subject to certain restrictions. The application of legal realism in the administration of justice must be bound and restricted, or it will go. To radicalize, lead to disorder, as Cardoso said, he follows the method of sociology but does not deny the role of other methods. The value and purpose of the law can be truly realized. The application of the legal realism is to follow the following hard constraints: to be carried out within the legal framework; not to be contrary to the legislation, the judicial policy and the judicial interpretation; to follow the principle of the proper procedure of the procedure; to base on the facts of the case, to be unable to speculate; cannot be contrary to the spirit of the model case; it should not be applied for the compensation of the victim's loss due to the subjective factors such as compassion; the principle of fairness and justice should be followed.; to view the society in a correct manner The influence of public opinion. Chapter 6, Summary. Realism of the New Legal
【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】：D920.0
本文编号：2413073
[Abstract]:The legal realist movement, which originated in the 20th century, is one of the most important legal movement in the United States. This great realistic movement not only has a far-reaching historical impact on the legal profession in the United States, but also has a reference for the current judicial practice in our country. As the representative of realism, Homs, Luerin, Cardoso, Frank and others are critical to formalism. degree. Their idea shows the light of the pragmatic philosophy. As a pioneer in the movement of realism, Homs first put forward that the life of the law is the famous theory of logic On the other hand, the realistic jurists agree with the uncertainty of the law, oppose the absolute concept of the law, hold the rule of doubt, and pay attention to the purpose of the legal society Sex. Our country is in a rapid development period, and the legal development and the current reality of the society are inevitable. There's a lot of new problems, too. This paper, through the case analysis method, discusses the application of the spirit of legal realism and the view of the judicial practice in the judicial decision, to solve the legal questions in the social development of our country. To promote the progress of the construction of the rule of law in our country, it is important to maintain the civil rights and the good social effect. The writing of this paper is divided into six parts. Part. The first chapter discusses the method as a background. The law formalism. The legal realism is accompanied by the criticism of formalism The view of a realistic jurist is generally accompanied by a formalism. Objection and criticism. Therefore, combing the main point of view of realism needs to view the view of formalism. The point is set forth. Chapter II, the representation of legal realism On the basis of the pragmatic philosophy, the author points out that the law should be based on the objective reality, note that the law should be based on the objective reality. The purpose of the law is to oppose the absolute concept of the supremacy and the legal uncertainty. On the basis of demonstrating the legal view of the legal realism, the author discusses the realistic view of the judicial practice: the logic three-section of the method of anti-formalism, and concludes that the decision is the result of the multi-interest of various factors, and when the interests conflict, it should be made Step in a sociological approach and focus on case referees The social purpose of the fruit. Chapter three, the necessity of the application of legal realism in the judicial referees The article discusses the existence of the difference between the legal rules and the reality by discussing the objective existence of the legal uncertainty, the existence of the difference between the legal rules and the reality, and discusses the realism in the administration of justice. The necessity of application in the referees. The application of realism is mainly in the spirit of realism. In this chapter, through the case analysis method, the author expounds that the application of realism in the practice of our country's decision mainly consists of the following: anti-mechanization, formalism, for the existing legal rules, The reasonable interpretation of the provisions is applicable; for the remedy of the legal uncertainty or to the application of the remedy of the legal loophole, the existing legal rules are excluded from the maintenance of the social essence and the application of the public order and the customs: for the maintenance of social work, The application of the social fashion is to be maintained. By analyzing the case, the case should be adapted. how to apply, and how to apply it. chap. IV, that error of legal realism in the administration of justice The possibility and cause of the application. The application of the legal realism needs to rely on the discretion of the judge, and the judge needs to play a subjective initiative in the case when the judge The judgment of the real and applicable rules. If the judge abuses his discretion in the process of the decision, the main point of view of the legal realism is not correct. There will be a risk of abuse. When a judge is unable to interpret and judge a case with an existing clear provision, it will generally be used by a so-called method of interpretation The more the facts and laws are, the greater the discretion of the judge, and if there are no clear limits and guidelines, the judge's self-consciousness or the individual in that case of the case, the main cause of the abuse is the abuse caused by the difference between the social interests of the parties to the litigation, the value judgment error, II. Abuse due to cross-border. Chapter V, Legal Realism The restrictions and restrictions applied in the administration of justice, and through the fourth chapter, it is concluded that the legal realism is in the judicial referees. It must be carried out to a limited extent. The discretion of the judge The process of referees is subject to certain restrictions. The application of legal realism in the administration of justice must be bound and restricted, or it will go. To radicalize, lead to disorder, as Cardoso said, he follows the method of sociology but does not deny the role of other methods. The value and purpose of the law can be truly realized. The application of the legal realism is to follow the following hard constraints: to be carried out within the legal framework; not to be contrary to the legislation, the judicial policy and the judicial interpretation; to follow the principle of the proper procedure of the procedure; to base on the facts of the case, to be unable to speculate; cannot be contrary to the spirit of the model case; it should not be applied for the compensation of the victim's loss due to the subjective factors such as compassion; the principle of fairness and justice should be followed.; to view the society in a correct manner The influence of public opinion. Chapter 6, Summary. Realism of the New Legal
【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】：D920.0
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