判决中的道德话语研究
发布时间：2018-11-20 11:26
【摘要】：法律自从产生之时起,便与道德产生了千丝万缕的联系。同样，在作为法律适用的最终产物的判决书中,道德话语的身影也是普遍存在着的。从古代的判词到现今的判决书，道德话语在我国的裁判文书演变过程中始终扮演着极为重要的角色。在中国古代的司法审判中，通德既是定罪量刑的标准，也是法官作出判决的主要的裁判理由。发展到今天，随着学界和实务界对法律理性和逻辑推理的推崇，道德话语在判决书中所占的比例已经大大降低，但是在司法实务中,道德话语和道德权衡仍然发挥着极为重要的作用，只不过在我国发展的不同阶段和不同地区,道德话语在判决中出现的位置和发挥的作用存在一定的差异，同样，在英美法系和大陆法系国家的判决书中也存在道德话语的适用情况。 道德话语作为裁判文书发展演变过程中的重要角色，在当今裁判文书的适用中既具有增强判决的可理解性与可接受性、强化判决书的社会效果、弥补实证法律之不足等积极意义，适用不当也可能会产生影响司法独立和司法公正，对依法裁判原则造成冲击、造成法官自由裁量权的扩大、影响法律的权威性和稳定性等消极作用。因此我们应当重视与正视道德话语在判决书中的地位与作用，从理论层面对将通德话语引入判决书进行分析研究，为道德话语在裁判文书中的适用提供充分的理论支持。 本文首先从通德话语的概念与特征入手，明确了在我国社会主义法治背景下的道德话语的具体含义与特征。在通过对司法裁判中道德权衡的普遍性、道德话语对逻辑推理局限性的有效克服以及判决中适用道德话语的优越性的分析，详细阐述了判决书中引入道德话语的正当性。然后通过对道德话语在我国及国外判决书中的适用情况的分析，阐明道德话语引入判决书中的现实基础，在该部分详细分析了我国判决书中引入适德话语的有效途径——法官后语及其可适用的案件范围、法官后语的具体内容以及法官后语在判决书中的具体位置。当然，道德话语在判决中的适用是有利也有弊的，在发挥增强判决的可接受性、强化判决的社会效果，增强判决书的说理性，，弥补实证法律之不足的积极作用的同时，道德话语也有一定的消极效果，如不合理适用逆德话语也可能会导致影响司法独立和司法公正、对依法裁判原则造成冲击，导致法官自由裁量权的扩大，影响法律的权威性和稳定性。因此，在判决中适用道德话语的过程中必须坚持尊重判决的合法性、在积累司法经验基础上明确道德话语在判决中的适用范围与形式,具有合理性与针对性地适用道德话语的原则,充分发挥其积极作用,避免消极影响,从而使其在我国社会主法治建设中发挥更加积极和有效的作用。
[Abstract]:Law has been inextricably linked with morality since it came into being. Similarly, as the final product of the application of law, the figure of moral discourse is universal. From the ancient judgment to the present judgment, moral discourse has always played an important role in the evolution of our country's judgment documents. In ancient Chinese judicial trial, Tong de is not only the standard of conviction and sentencing, but also the main reason for the judge to make a judgment. Today, with the promotion of legal rationality and logical reasoning in academic and practical circles, the proportion of moral discourse in judgment has been greatly reduced, but in judicial practice, Moral discourse and moral balance still play an extremely important role, but there are some differences in the position and function of moral discourse in the judgment in different stages and different regions of our country. There is also the application of moral discourse in the judgments of common law and civil law countries. Moral discourse, as an important role in the process of the development and evolution of adjudicative documents, not only enhances the comprehensibility and acceptability of judgment, but also strengthens the social effect of judgment in the application of adjudicative documents. To make up for the deficiency of empirical law and other positive significance, improper application may also affect judicial independence and judicial justice, impact on the principle of adjudication according to law, and cause the expansion of the discretion of judges. Influence the authority and stability of the law and other negative effects. Therefore, we should pay attention to and face up to the position and function of moral discourse in the judgment, analyze and study the introduction of moral discourse into the judgment from the theoretical level, and provide sufficient theoretical support for the application of moral discourse in the judgment document. This paper begins with the concept and characteristics of Tongde discourse, and clarifies the concrete meaning and characteristics of moral discourse under the background of socialist rule of law in our country. Through the analysis of the universality of moral balance in judicial judgment, the effective overcoming of the limitation of moral discourse to logical reasoning and the analysis of the superiority of applying moral discourse in judgment, the legitimacy of introducing moral discourse in judgment is expounded in detail. Then, through the analysis of the application of moral discourse in the judgment of our country and abroad, the paper clarifies the realistic basis of the moral discourse in the judgment. In this part, the author analyzes in detail the effective approach to the introduction of moral discourse in the judgment of our country-the latter language and its applicable scope of cases, the specific content of the latter language and the specific position of the latter language in the judgment. Of course, the application of moral discourse in judgment has both advantages and disadvantages. At the same time, it plays a positive role in enhancing the acceptability of judgment, strengthening the social effect of judgment, enhancing the rationality of judgment, and making up for the deficiency of empirical law. Moral discourse also has some negative effects, such as the unreasonable application of anti-moral discourse may also lead to the impact on judicial independence and judicial justice, the impact on the principle of adjudication according to law, and the expansion of the judge's discretion. Influence the authority and stability of the law. Therefore, in the process of applying moral discourse in judgment, we must insist on respecting the legality of judgment, and make clear the scope and form of moral discourse in judgment on the basis of accumulating judicial experience. Applying the principle of moral discourse rationally and pertinently, giving full play to its positive role and avoiding negative influence, will make it play a more active and effective role in the construction of the dominant rule of law in our society.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D920.4
本文编号：2344791
[Abstract]:Law has been inextricably linked with morality since it came into being. Similarly, as the final product of the application of law, the figure of moral discourse is universal. From the ancient judgment to the present judgment, moral discourse has always played an important role in the evolution of our country's judgment documents. In ancient Chinese judicial trial, Tong de is not only the standard of conviction and sentencing, but also the main reason for the judge to make a judgment. Today, with the promotion of legal rationality and logical reasoning in academic and practical circles, the proportion of moral discourse in judgment has been greatly reduced, but in judicial practice, Moral discourse and moral balance still play an extremely important role, but there are some differences in the position and function of moral discourse in the judgment in different stages and different regions of our country. There is also the application of moral discourse in the judgments of common law and civil law countries. Moral discourse, as an important role in the process of the development and evolution of adjudicative documents, not only enhances the comprehensibility and acceptability of judgment, but also strengthens the social effect of judgment in the application of adjudicative documents. To make up for the deficiency of empirical law and other positive significance, improper application may also affect judicial independence and judicial justice, impact on the principle of adjudication according to law, and cause the expansion of the discretion of judges. Influence the authority and stability of the law and other negative effects. Therefore, we should pay attention to and face up to the position and function of moral discourse in the judgment, analyze and study the introduction of moral discourse into the judgment from the theoretical level, and provide sufficient theoretical support for the application of moral discourse in the judgment document. This paper begins with the concept and characteristics of Tongde discourse, and clarifies the concrete meaning and characteristics of moral discourse under the background of socialist rule of law in our country. Through the analysis of the universality of moral balance in judicial judgment, the effective overcoming of the limitation of moral discourse to logical reasoning and the analysis of the superiority of applying moral discourse in judgment, the legitimacy of introducing moral discourse in judgment is expounded in detail. Then, through the analysis of the application of moral discourse in the judgment of our country and abroad, the paper clarifies the realistic basis of the moral discourse in the judgment. In this part, the author analyzes in detail the effective approach to the introduction of moral discourse in the judgment of our country-the latter language and its applicable scope of cases, the specific content of the latter language and the specific position of the latter language in the judgment. Of course, the application of moral discourse in judgment has both advantages and disadvantages. At the same time, it plays a positive role in enhancing the acceptability of judgment, strengthening the social effect of judgment, enhancing the rationality of judgment, and making up for the deficiency of empirical law. Moral discourse also has some negative effects, such as the unreasonable application of anti-moral discourse may also lead to the impact on judicial independence and judicial justice, the impact on the principle of adjudication according to law, and the expansion of the judge's discretion. Influence the authority and stability of the law. Therefore, in the process of applying moral discourse in judgment, we must insist on respecting the legality of judgment, and make clear the scope and form of moral discourse in judgment on the basis of accumulating judicial experience. Applying the principle of moral discourse rationally and pertinently, giving full play to its positive role and avoiding negative influence, will make it play a more active and effective role in the construction of the dominant rule of law in our society.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D920.4
【引证文献】
中国硕士学位论文全文数据库 前1条
1 段美玲;赡养纠纷判决书中的道德话语研究[D];苏州大学;2016年
本文编号：2344791
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