考夫曼法律现实化理论探析
发布时间：2018-10-25 06:41
【摘要】： 2001年4月11日,阿图尔.考夫曼逝世于德国慕尼黑,享年78岁。考夫曼先生是德国著名的法哲学领域以及刑法学领域的专家,他的去世使法学界失去了一位一流研究者。 笔者认为考夫曼法律思想体系在我国法理学的研究中还属于比较初步的阶段,其中蕴含的丰富的、价值的理念还有待更多的学者加以深入的剖析。自古以来,我国的法律思维模式都未取得重大的突破,一直沿袭使用传统的形式逻辑的思维方式来推导法律,运用笼统的非此即彼的绝对化的价值观念来适用法律。这些年来,随着我国法学家对于法律类型思维理论的理解的深入,我们开始逐渐认识到,适用法律规则时,除了形而上的精确、严密化的思维模式之外,我们还需要把法学、法律思考与实际的生活相联系,以避免单纯的依靠逻辑而得出极端的判决。 传统上类推仅仅是法律适用的补充性技术,而考夫曼在诠释学的关照下主张所有的法律适用都是类推的过程。没有完全相同的案件,法律适用就是规范与事实不断逼近的过程,只有在规范与事实的对应中才有真实的法。类推的过程可以通过考察规范与事实的共有意义、回归立法目的和判断相似性等方式来操作,从而实现类推从本体论到方法论的转换。 笔者试图突破以纯理论的层面剖析考夫曼的法律现实化理论,文章加以诸多的疑难案件,这些案件大多是需要法官的结合“类推”的思维推论模式才能加以判决。文章试图通过这些案例的分析,具体剖析考夫曼法律现实化理论之精华,让这一理论从学术层面向司法实践层面接轨,试图寻找出该理论中的实践意义,同时加以运用到中国的实际审判中。这不仅是本文的创新点,也是本文的难点所在。
[Abstract]:April 11, 2001, Atul. Kaufman died at the age of 78 in Munich, Germany. Kaufmann is a famous German expert in the field of philosophy of law and criminal law. The author thinks that Kaufman's legal thought system is still a preliminary stage in the study of jurisprudence in our country, and the rich and valuable ideas contained therein need to be deeply analyzed by more scholars. Since ancient times, the mode of legal thinking in our country has not made any significant breakthrough. It has always followed the traditional thinking mode of formal logic to deduce the law, and to apply the law by using the general absolute values of either or one or the other. Over the years, with the deepening understanding of the legal type thinking theory among Chinese jurists, we have gradually realized that, in addition to the metaphysical precise and rigorous thinking mode, we also need to apply the law to the law. Legal thinking is linked to actual life in order to avoid relying solely on logic to reach extreme judgments. Traditionally, analogies are only complementary techniques for the application of law, while Kaufman argues that all legal application is a process of analogy under the care of hermeneutics. There is no identical case, the application of law is the process of norm and fact approaching constantly, only in the correspondence between norm and fact can there be real law. The process of analogies can be operated by examining the common meaning of norms and facts, returning legislative purpose and judging similarity, so as to realize the transformation of analogy from ontology to methodology. The author tries to break through Kaufman's theory of legal reality on the level of pure theory, and make a lot of difficult cases, most of which need the judge's "analogy" mode of thinking in order to be judged. This paper attempts to analyze the essence of Kaufman's theory of legal reality through the analysis of these cases, so that the theory can be connected from the academic level to the judicial practice level, and try to find out the practical significance of the theory. At the same time, it is applied to the actual trial in China. This is not only the innovation of this paper, but also the difficulty of this paper.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D90
本文编号：2292931
[Abstract]:April 11, 2001, Atul. Kaufman died at the age of 78 in Munich, Germany. Kaufmann is a famous German expert in the field of philosophy of law and criminal law. The author thinks that Kaufman's legal thought system is still a preliminary stage in the study of jurisprudence in our country, and the rich and valuable ideas contained therein need to be deeply analyzed by more scholars. Since ancient times, the mode of legal thinking in our country has not made any significant breakthrough. It has always followed the traditional thinking mode of formal logic to deduce the law, and to apply the law by using the general absolute values of either or one or the other. Over the years, with the deepening understanding of the legal type thinking theory among Chinese jurists, we have gradually realized that, in addition to the metaphysical precise and rigorous thinking mode, we also need to apply the law to the law. Legal thinking is linked to actual life in order to avoid relying solely on logic to reach extreme judgments. Traditionally, analogies are only complementary techniques for the application of law, while Kaufman argues that all legal application is a process of analogy under the care of hermeneutics. There is no identical case, the application of law is the process of norm and fact approaching constantly, only in the correspondence between norm and fact can there be real law. The process of analogies can be operated by examining the common meaning of norms and facts, returning legislative purpose and judging similarity, so as to realize the transformation of analogy from ontology to methodology. The author tries to break through Kaufman's theory of legal reality on the level of pure theory, and make a lot of difficult cases, most of which need the judge's "analogy" mode of thinking in order to be judged. This paper attempts to analyze the essence of Kaufman's theory of legal reality through the analysis of these cases, so that the theory can be connected from the academic level to the judicial practice level, and try to find out the practical significance of the theory. At the same time, it is applied to the actual trial in China. This is not only the innovation of this paper, but also the difficulty of this paper.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D90
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