美国司法独立从法律文本规定到实际确立的历史考察
发布时间：2018-10-05 11:53
【摘要】： 美国的司法独立制度是世界司法独立制度的典型代表,它对美国社会的民主制度及当时和以后的社会发展道路产生了深远的影响,并成为今天许多国家效仿的楷模和研究对象。对于美国司法独立的确立及其标准,不同研究者提出了不同的观点。本文认为,美国的司法独立从法律文本规定到实际确立经历了一个逐步发展的过程,直到1805年“蔡斯弹劾案”才最终在实践中确立起来。 本文主要内容分为四个部分： 第一部分,回顾了美国宪法颁布前司法的发展概况。尽管这一时期的司法继承和发展了英国的司法传统,设立了法院,任命了法官,在司法的独立性上不断进步,但从司法的发展现实来看,这一时期的司法没有也不可能具备独立地位。司法机关没有获得独立的地位,也没有获得独立的权力,其他机构可以干涉甚至改变司法机关的判决；法官也没有获得独立的职位,存在法官兼任现象；法官的地位也不稳固,其任命权和薪酬都控制在英国政府手中。 第二部分,分析了宪法颁布后对司法独立的法律文本规定。1787年联邦宪法和《1789年司法法》在法官地位(主要是任期和薪酬)、司法权适用范围、司法机构设置及司法的具体运行等方面对司法独立做了具体详实的规定,并通过后者建立了联邦最高法院和各级法院。但是,法律文本的规定能否保证司法的独立地位,还需要在实践中的检验。 第三部分,论述了司法独立在实践中面临的困境及其原因。尽管宪法和《1789年司法法》对司法独立做了一系列规定,但由于历史和现实的原因,司法在实践中没有实现独立。法官依然有兼职行为,法官在党争形势下成为政党斗争的工具,法官面临弹劾的威胁,这些现实使司法还无法实现独立。究其原因,司法在社会上还没有获得足够的尊重,司法依然缺少维系独立的制衡权力,弹劾权标准滥用,使司法在现实中难以实现独立。 第四部分,论述了司法在实践中逐步独立的过程。司法要实现独立,就要克服上述现象,解决造成其无法独立的因素。通过判案,司法不断地争取着维系独立的制衡权力,并终于在“马伯里诉麦迪逊案”中获得这一权力。在随后的“蔡斯弹劾案”中,不仅制衡权力得到进一步巩固,弹劾法官的标准也得以谨慎和明确,而且,通过“蔡斯弹劾案”,对司法的尊重得以增强,司法具备了相对超党派的至上地位。阻碍司法独立的主要因素得以解决,司法终于在实践中实现独立,成为一种司法审判原则和政治原则。
[Abstract]:The judicial independence system of the United States is a typical representative of the judicial independence system in the world. It has exerted a profound influence on the democratic system of American society and the way of social development at that time and later, and has become a model and research object that many countries follow today. Different researchers have put forward different views on the establishment and standards of judicial independence in the United States. This paper holds that the judicial independence of the United States has experienced a gradual development from the stipulation of the legal text to the actual establishment, and it was not until 1805 that the impeachment case of Chase was finally established in practice. The main content of this paper is divided into four parts: the first part reviews the development of the U.S. Constitution before the promulgation of the judicial situation. Although this period of judicial succession and development of the British judicial tradition, the establishment of courts, appointed judges, in the judicial independence of the progress, but from the development of the reality of the judiciary, The judiciary of this period did not and could not have independent status. The judiciary has not been given independent status or powers, and other bodies can interfere with or even change the decisions of the judiciary; judges have not been granted independent positions, and there is a phenomenon of judges serving concurrently; the status of judges is also precarious. Its power of appointment and remuneration are in the hands of the British government. In the second part, the author analyzes the legal provisions on judicial independence after the promulgation of the Constitution. The Federal Constitution of 1787 and the Judicial Act of 1789 are applied to the status of judges (mainly the term of office and remuneration), the scope of application of judicial power. The establishment of judicial institutions and the specific operation of the judiciary have made specific and detailed provisions on judicial independence, and through the latter, the Federal Supreme Court and courts at all levels have been established. However, whether the provisions of legal texts can guarantee the independent status of the judiciary still needs to be tested in practice. The third part discusses the dilemma and reasons of judicial independence in practice. Although the Constitution and the Judicial Law of 1789 make a series of provisions on judicial independence, due to historical and practical reasons, judicial independence has not been realized in practice. Judges still have part-time activities, judges have become a tool of party struggle in the situation of party contention, judges face the threat of impeachment, these realities make the judiciary unable to achieve independence. The reason is that the judiciary has not got enough respect in the society, the judiciary still lacks the power to maintain independent checks and balances, and the impeachment power is abused, which makes it difficult for the judiciary to realize independence in reality. The fourth part discusses the process of judicial independence in practice. To realize the independence of the judiciary, we must overcome the above phenomenon and solve the factors that make it impossible to be independent. By adjudication, the judiciary constantly strives to maintain an independent power of checks and balances, and finally obtains this power in Marbury v. Madison. In the subsequent impeachment case of Chase, not only the power of checks and balances was further consolidated, but also the standard of impeachment judges was carefully and clearly defined, and the respect for the judiciary was enhanced through the "chase impeachment case." The judiciary has the supreme position of the relative super-party school. The main factors hindering the judicial independence were solved, and the judicature finally realized independence in practice, which became a judicial principle and a political principle.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D971.2
本文编号：2253278
[Abstract]:The judicial independence system of the United States is a typical representative of the judicial independence system in the world. It has exerted a profound influence on the democratic system of American society and the way of social development at that time and later, and has become a model and research object that many countries follow today. Different researchers have put forward different views on the establishment and standards of judicial independence in the United States. This paper holds that the judicial independence of the United States has experienced a gradual development from the stipulation of the legal text to the actual establishment, and it was not until 1805 that the impeachment case of Chase was finally established in practice. The main content of this paper is divided into four parts: the first part reviews the development of the U.S. Constitution before the promulgation of the judicial situation. Although this period of judicial succession and development of the British judicial tradition, the establishment of courts, appointed judges, in the judicial independence of the progress, but from the development of the reality of the judiciary, The judiciary of this period did not and could not have independent status. The judiciary has not been given independent status or powers, and other bodies can interfere with or even change the decisions of the judiciary; judges have not been granted independent positions, and there is a phenomenon of judges serving concurrently; the status of judges is also precarious. Its power of appointment and remuneration are in the hands of the British government. In the second part, the author analyzes the legal provisions on judicial independence after the promulgation of the Constitution. The Federal Constitution of 1787 and the Judicial Act of 1789 are applied to the status of judges (mainly the term of office and remuneration), the scope of application of judicial power. The establishment of judicial institutions and the specific operation of the judiciary have made specific and detailed provisions on judicial independence, and through the latter, the Federal Supreme Court and courts at all levels have been established. However, whether the provisions of legal texts can guarantee the independent status of the judiciary still needs to be tested in practice. The third part discusses the dilemma and reasons of judicial independence in practice. Although the Constitution and the Judicial Law of 1789 make a series of provisions on judicial independence, due to historical and practical reasons, judicial independence has not been realized in practice. Judges still have part-time activities, judges have become a tool of party struggle in the situation of party contention, judges face the threat of impeachment, these realities make the judiciary unable to achieve independence. The reason is that the judiciary has not got enough respect in the society, the judiciary still lacks the power to maintain independent checks and balances, and the impeachment power is abused, which makes it difficult for the judiciary to realize independence in reality. The fourth part discusses the process of judicial independence in practice. To realize the independence of the judiciary, we must overcome the above phenomenon and solve the factors that make it impossible to be independent. By adjudication, the judiciary constantly strives to maintain an independent power of checks and balances, and finally obtains this power in Marbury v. Madison. In the subsequent impeachment case of Chase, not only the power of checks and balances was further consolidated, but also the standard of impeachment judges was carefully and clearly defined, and the respect for the judiciary was enhanced through the "chase impeachment case." The judiciary has the supreme position of the relative super-party school. The main factors hindering the judicial independence were solved, and the judicature finally realized independence in practice, which became a judicial principle and a political principle.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D971.2
【引证文献】
相关硕士学位论文 前1条
1 聂潍;美国司法独立的早期史[D];华东政法大学;2011年
，本文编号：2253278
本文链接：https://www.wllwen.com/falvlunwen/fashilw/2253278.html
