论司法裁判中的利益衡量
发布时间：2019-04-02 04:33
【摘要】： 随着改革开放的深入进行,我国社会的利益格局也发生了深刻变化,如何合理调整利益分配格局、协调利益冲突、平衡利益关系,对司法裁判活动提出了严峻的挑战。 同时,由于立法所特有的稳定性和保守性,法律面对现实社会中的利益冲突时,其调控功能具有不可避免的局限性,且疑难案件的不断出现也给法官裁判提出更高要求。利益衡量作为一种法律解释或适用的方法,在我国的司法实践中得到越来越多的运用,逐渐体现出其在平衡各方利益中的独特作用;但是,利益衡量从本质上讲是一种主观行为,有其自身的局限性和不足,如何在保证法的安定性和结论的妥当性之间寻求平衡,是利益衡量理论在司法审判中亟需加以解决的问题。 为了更好的运用利益衡量来弥补法律调整的缺漏,最大限度保护当事人的合法利益,实现司法公平,促进社会和谐,并避免法官的肆意衡量,本文运用纳、归比较和案例分析的方法,从理论与实践两个方面对利益衡量的必要性和操作原则等问题进行探讨,以期在一定程度上对司法实践有所裨益。 本文共分为四个部分,着重探讨利益衡量的主要适用情形以及运作过程。 第一部分主要对利益衡量论的发展脉络进行系统深入的梳理,阐述该理论的产生背景及其发展历程,为深入研究利益衡量思维方法做必要的理论前提准备。 第二部分分析了利益衡量在司法裁判中运用的必要性和意义。 第三部分主要是结合案例具体说明利益衡量理论适用的前提和主要情形。利益衡量主要适用于法意模糊型、法条竞合型、法律漏洞型、法律荒谬型的疑难案件中。 第四部分重点探讨了适用利益衡量时应当遵循的几点原则,并把利益衡量的具体操作过程分为三个阶段:利益的调查与分析、利益的权衡与取舍、结论的论证与修正。
[Abstract]:With the deepening of reform and opening-up, profound changes have taken place in the pattern of interests in our society. How to adjust the pattern of distribution of interests reasonably, coordinate the conflicts of interests and balance the relationship of interests poses a severe challenge to judicial adjudication activities. At the same time, due to the unique stability and conservatism of legislation, the regulation and control function of law in the face of conflicts of interest in the real society has inevitable limitations, and the continuous emergence of difficult cases also put forward higher requirements for judges and judges. As a method of legal interpretation or application, interest measurement has been used more and more in the judicial practice of our country, which gradually reflects its unique role in balancing the interests of all parties. However, interest measurement is a kind of subjective behavior in essence, has its own limitations and deficiencies, how to find a balance between the stability of the guarantee law and the appropriateness of the conclusion, It is an urgent problem to be solved by the theory of interest measurement in judicial trial. In order to make better use of interest measurement to make up for the lack of legal adjustment, to maximize the protection of the legitimate interests of the parties, to achieve judicial fairness, to promote social harmony, and to avoid the judge's wanton measurement, this paper uses the " The methods of comparison and case analysis discuss the necessity and operational principles of interest measurement from both theoretical and practical aspects in order to be beneficial to judicial practice to a certain extent. This paper is divided into four parts, focusing on the main application of interest measurement and operation process. The first part makes a systematic and in-depth analysis of the development of the theory of interest measurement, expounds the background and development process of the theory, and makes the necessary theoretical premise for the in-depth study of the thinking method of interest measurement. The second part analyzes the necessity and significance of interest measurement in judicial judgment. The third part is mainly to explain the premise and main situation of the application of the theory of interest measurement in combination with the case. The balance of interests is mainly applicable in the difficult cases of ambiguity of law, concurrence of laws, loopholes in law, and absurdity of law. The fourth part mainly discusses several principles that should be followed when applying the interest measurement, and divides the concrete operation process of the interest measurement into three stages: the investigation and analysis of the interest, the trade-off and trade-off of the benefit, the argumentation and amendment of the conclusion.
【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】：D920.4
本文编号：2452244
[Abstract]:With the deepening of reform and opening-up, profound changes have taken place in the pattern of interests in our society. How to adjust the pattern of distribution of interests reasonably, coordinate the conflicts of interests and balance the relationship of interests poses a severe challenge to judicial adjudication activities. At the same time, due to the unique stability and conservatism of legislation, the regulation and control function of law in the face of conflicts of interest in the real society has inevitable limitations, and the continuous emergence of difficult cases also put forward higher requirements for judges and judges. As a method of legal interpretation or application, interest measurement has been used more and more in the judicial practice of our country, which gradually reflects its unique role in balancing the interests of all parties. However, interest measurement is a kind of subjective behavior in essence, has its own limitations and deficiencies, how to find a balance between the stability of the guarantee law and the appropriateness of the conclusion, It is an urgent problem to be solved by the theory of interest measurement in judicial trial. In order to make better use of interest measurement to make up for the lack of legal adjustment, to maximize the protection of the legitimate interests of the parties, to achieve judicial fairness, to promote social harmony, and to avoid the judge's wanton measurement, this paper uses the " The methods of comparison and case analysis discuss the necessity and operational principles of interest measurement from both theoretical and practical aspects in order to be beneficial to judicial practice to a certain extent. This paper is divided into four parts, focusing on the main application of interest measurement and operation process. The first part makes a systematic and in-depth analysis of the development of the theory of interest measurement, expounds the background and development process of the theory, and makes the necessary theoretical premise for the in-depth study of the thinking method of interest measurement. The second part analyzes the necessity and significance of interest measurement in judicial judgment. The third part is mainly to explain the premise and main situation of the application of the theory of interest measurement in combination with the case. The balance of interests is mainly applicable in the difficult cases of ambiguity of law, concurrence of laws, loopholes in law, and absurdity of law. The fourth part mainly discusses several principles that should be followed when applying the interest measurement, and divides the concrete operation process of the interest measurement into three stages: the investigation and analysis of the interest, the trade-off and trade-off of the benefit, the argumentation and amendment of the conclusion.
【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】：D920.4
【引证文献】
相关硕士学位论文 前2条
1 孔志强;论司法过程中的利益衡量[D];华东政法大学;2011年
2 周莹青;论利益衡量方法在行政审判中的运用[D];华东政法大学;2012年
，本文编号：2452244
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