论作为法源的事物本质

发布时间：2018-06-16 03:23

本文选题：法律渊源 + 事物本质　；参考：《山东大学》2009年硕士论文

【摘要】： 法律渊源是一个古老而常新的话题,传统立法立场的法源理论对法律方法研究贡献有限,而司法立场的法律渊源是法官为正确裁判案件而寻找法律的大致场所,与法律发现结合使其具有了方法论意义。司法立场的法律渊源形式也不同于法律的表现形式,它的范围比较广泛。在此立场下,事物本质也是法源之一种,能够成为法官裁判的理论源泉。西方学者极为重视事物本质这一理论,它是事物间关系的内在规定性,也是法律的存在基础,涉及到对事物的评价,归根结底表现为人的本质。事物本质能够作为法源,外在原因是制定法不可避免的缺陷和法官不得拒绝裁判原则的适用,内在原因是事物本质所固有的性质。将事物本质作为法源,有着巨大的理论和实践意义:拓宽了传统法律渊源的范围,符合法源理论的发展趋势,能够在无具体条文指引时,防止法官滥用自由裁量权,从而最终达到个案衡平。事物本质作为人们对事物自在性的认知,反映了事物的规律和内在联系。正因如此,它是制定法、判例法、习惯、民间规则和公序良俗以及法官造法的存在基础。事物本质是权威性法源的补充,在有权威性法源存在的时候,事物本质便不能随意发挥作用,只有权威性法源不足以提供裁判依据时,才能以事物本质进行裁判。法官在不得已情况下用事物本质进行裁判时,还必须满足以下几个方面的条件:能动主义的司法理念、重视法律方法的价值判断、法官整体素质的提高、说明理由制度的建立。只有这样,才既能使事物本质作为法源充分发挥作用,又保证其不被滥用,从而最终恰当解决纠纷,实现个案正义。用事物本质作为法源解决纠纷的例证很多,但是在我国,由于对这一概念比较陌生,人们普遍没有意识到。最后一章举出用事物本质作为依据进行裁判的实例意在说明:假以时日,人们理解并接受了这一概念,完全可以直接用事物本质进行裁判,而不必委婉繁琐地用其它方式表达同样的意思。
[Abstract]:The origin of law is an old and often new topic. The legal source theory of the traditional legislative position has limited contribution to the study of the legal method, while the legal source of the judicial position is the general place where the judge seeks the law for the correct adjudication of the case. The combination with legal discovery gives it methodological significance. The source form of judicial position is different from the manifestation of law, and its scope is wide. In this position, the essence of things is also one of the sources of law, and can become the theoretical source of judges. Western scholars attach great importance to the theory of the essence of things, which is the inherent stipulation of the relationship between things and the basis of the existence of law. It involves the evaluation of things, and in the final analysis, it is manifested as the essence of human beings. The essence of things can be regarded as the source of law, the external reasons are the inevitable defects of the law of making law and the fact that the judge can not refuse the application of the principle of adjudication, and the intrinsic reason is the inherent nature of the essence of things. It is of great theoretical and practical significance to regard the essence of things as the source of law: it widens the scope of traditional sources of law, conforms to the developing trend of the theory of source of law, and can prevent judges from abusing their discretion when there is no specific provision to guide them. So that the final case balance. The essence of things, as people's cognition of the freedom of things, reflects the laws and internal relations of things. For this reason, it is the basis for the establishment of law, case law, custom, folk rules, public order and good custom, as well as the law made by judges. The essence of things is the supplement of authoritative sources of law. When there is an authoritative source of law, the essence of things cannot play its role at will. Only when the source of authoritative law is not sufficient to provide the basis for adjudication, can the nature of things be judged. When judges have to judge with the essence of things, they must satisfy the following conditions: the judicial concept of activism, the value judgment of legal methods, the improvement of judges' overall quality, and the establishment of the system of explaining reasons. Only in this way, can the essence of things play a full role as a source of law and ensure that it is not abused, so as to solve disputes properly and realize case justice. There are many examples of using the essence of things as a source of law to solve disputes, but in our country, because of this concept is relatively unfamiliar, people generally do not realize. The last chapter gives an example of judging on the basis of the essence of things, which is intended to show that, over time, people understand and accept this concept and can judge directly with the essence of things. It doesn't have to be euphemistic and cumbersome to express the same meaning in other ways.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D903

【参考文献】