判例法在中国实行的可行性及其理想模式研究
发布时间：2019-06-04 02:51
【摘要】： 判例法制度研究自新中国成立以来就从来未间断过,随着中国现代司法体制改革的深入,是否引入判例法成为当代中国司法体制改革的重点、热点问题。 本文通过历史分析、辩证分析及比较分析等方法,分析英美判例法与中国传统判例制度的联系与差异,阐述在中国实行判例法制度的可行性,旨在论证建立具有中国特色的判例法制度体系的意义,指出中国特色判例制度的建立有利于形成独具中国特色的法律体制,有益于实现法制的统一与和谐。 本文首先通过对英美判例法的历史考察,着重介绍了英国判例法演变过程以及美国继受英国判例法并对其进行本土化改造的过程,这些均为中国进行判例法改革提供了外向性经验。 其次,本文通过对中国古代、近现代、当代法律形式的考察,指出自奴隶社会起中国就存在判例的萌芽,而这一萌芽在封建时期得到了发展并不断成熟。虽然判例制度在该时期有所反复,但秦汉及宋代的判例制度的应用是空前广泛的,亦为现今中国判例制度改革提供许多可借鉴经验。本章说明中国并非没有判例法,中国的判例传统是不能被抹杀的,此为中国实行判例法制度提供了内向性环境基础。本章最后基于对英美判例法演变的研究及对中国判例传统的考察,分析其联系与差异,探讨中外判例制度对中国司法改革的意义。 第三章通过对中国现代法学学者对判例法是否在中国可行的观点的列举和分析,表明笔者的判例法在中国实行的可行性观点,并就判例法在中国实行的本国因素、他国因素和技术操作因素进行了分析,在此重点从本国因素中的人文因素(包括普通人群及法官、律师等法律执业者的角度)、经济因素、地理因素等进行细致的可行性分析;该章最后又对判例法在中国实行后的作用进行了预测。 最后,本文提出结合了中国特点的判例法理想模式。该理想模式包括:中国化判例法制度的框架基础、中国化判例法的创制主体、判例遴选的原则、创制程序及法律技术问题。其中针对中国化判例法的创制主体问题,本文主张采用有限创制主体理论,即享有终审权的中级以上人民法院有创制判例的权利,并对创制的范围作出了界定,即这种创制包括制作、认可、公布、修改、废止等活动,而不仅仅指公布一种活动。在判例遴选的原则问题上,本文提出要在众多的判决中选取具有代表意义的判决作为判例。最后,对于中国化判例法的法律技术问题,本文对其中的溯及力、引用、区别技术等进行了解析。 通过上述论述,笔者认为,我国现代司法体制改革的瓶颈在于法律制度的不健全,国外的优良司法制度应成为我们借鉴的对象,判例法制度只有结合了中国本国特点才能发挥出其优秀的特质,这种结合定会迅速适应中国的政治、经济和法治土壤,让中国的政治更民主、经济更繁荣、法治更健康。
[Abstract]:The study of case law system has never been interrupted since the founding of New China. With the deepening of the reform of modern judicial system in China, whether to introduce case law has become the focus and hot issue of judicial system reform in contemporary China. Through historical analysis, dialectical analysis and comparative analysis, this paper analyzes the relationship and differences between Anglo-American case law and Chinese traditional case system, and expounds the feasibility of implementing case law system in China. The purpose of this paper is to demonstrate the significance of establishing a case law system with Chinese characteristics, and to point out that the establishment of a case law system with Chinese characteristics is conducive to the formation of a legal system with unique Chinese characteristics and is beneficial to the realization of the unity and harmony of the legal system. First of all, through the historical investigation of Anglo-American case law, this paper focuses on the evolution of British case law and the process of the United States following the British case law and its localization and transformation. All these provide extroverted experience for China to carry out case law reform. Secondly, through the investigation of ancient, modern and contemporary legal forms in China, this paper points out that there has been the germination of cases in China since slave society, and this germination has been developed and matured in feudal period. Although the case system has been repeated in this period, the application of the case system in Qin and Han dynasties and Song Dynasty is unprecedented, and it also provides a lot of experience for the reform of the case system in China. This chapter shows that China does not have case law, and the tradition of Chinese case law can not be obliterated, which provides an introverted environmental basis for the implementation of case law system in China. Finally, based on the study of the evolution of case law in Britain and the United States and the investigation of the tradition of Chinese case law, this chapter analyzes its relationship and differences, and discusses the significance of Chinese and foreign case system to China's judicial reform. The third chapter enumerates and analyzes the feasibility of case law in China by modern Chinese legal scholars, and shows the feasibility of the implementation of case law in China, as well as the domestic factors of the implementation of case law in China. This paper analyzes the factors of other countries and technical operation, and makes a detailed feasibility analysis from the human factors (including the general population, judges, lawyers and other legal practitioners), economic factors, geographical factors and so on. At the end of this chapter, the role of case law in China is predicted. Finally, this paper puts forward an ideal model of case law which combines the characteristics of China. The ideal model includes: the framework basis of Sinicized case law system, the creation subject of Sinicized case law, the principle of case selection, the creation procedure and legal and technical issues. Among them, in view of the problem of the creation subject of Sinicized case law, this paper advocates the theory of limited creation subject, that is, the people's court at or above the intermediate level, which has the power of final adjudication, has the right to create the case law, and defines the scope of the creation. That is, this creation includes the production, approval, publication, modification, abolition and other activities, not just the publication of an activity. On the principle of case selection, this paper proposes to select representative decisions as cases among many decisions. Finally, for the legal and technical problems of Sinicized case law, this paper analyzes the retroactive effect, citation, differential technology and so on. Through the above discussion, the author believes that the bottleneck of the reform of modern judicial system in our country lies in the imperfection of the legal system, and the excellent judicial system in foreign countries should become the object of our reference. Only by combining the characteristics of China can the case law system give full play to its excellent characteristics. This combination will quickly adapt to the soil of China's politics, economy and rule of law, and make China's politics more democratic, its economy more prosperous and its rule of law healthier.
【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】：D920.4
本文编号：2492420
[Abstract]:The study of case law system has never been interrupted since the founding of New China. With the deepening of the reform of modern judicial system in China, whether to introduce case law has become the focus and hot issue of judicial system reform in contemporary China. Through historical analysis, dialectical analysis and comparative analysis, this paper analyzes the relationship and differences between Anglo-American case law and Chinese traditional case system, and expounds the feasibility of implementing case law system in China. The purpose of this paper is to demonstrate the significance of establishing a case law system with Chinese characteristics, and to point out that the establishment of a case law system with Chinese characteristics is conducive to the formation of a legal system with unique Chinese characteristics and is beneficial to the realization of the unity and harmony of the legal system. First of all, through the historical investigation of Anglo-American case law, this paper focuses on the evolution of British case law and the process of the United States following the British case law and its localization and transformation. All these provide extroverted experience for China to carry out case law reform. Secondly, through the investigation of ancient, modern and contemporary legal forms in China, this paper points out that there has been the germination of cases in China since slave society, and this germination has been developed and matured in feudal period. Although the case system has been repeated in this period, the application of the case system in Qin and Han dynasties and Song Dynasty is unprecedented, and it also provides a lot of experience for the reform of the case system in China. This chapter shows that China does not have case law, and the tradition of Chinese case law can not be obliterated, which provides an introverted environmental basis for the implementation of case law system in China. Finally, based on the study of the evolution of case law in Britain and the United States and the investigation of the tradition of Chinese case law, this chapter analyzes its relationship and differences, and discusses the significance of Chinese and foreign case system to China's judicial reform. The third chapter enumerates and analyzes the feasibility of case law in China by modern Chinese legal scholars, and shows the feasibility of the implementation of case law in China, as well as the domestic factors of the implementation of case law in China. This paper analyzes the factors of other countries and technical operation, and makes a detailed feasibility analysis from the human factors (including the general population, judges, lawyers and other legal practitioners), economic factors, geographical factors and so on. At the end of this chapter, the role of case law in China is predicted. Finally, this paper puts forward an ideal model of case law which combines the characteristics of China. The ideal model includes: the framework basis of Sinicized case law system, the creation subject of Sinicized case law, the principle of case selection, the creation procedure and legal and technical issues. Among them, in view of the problem of the creation subject of Sinicized case law, this paper advocates the theory of limited creation subject, that is, the people's court at or above the intermediate level, which has the power of final adjudication, has the right to create the case law, and defines the scope of the creation. That is, this creation includes the production, approval, publication, modification, abolition and other activities, not just the publication of an activity. On the principle of case selection, this paper proposes to select representative decisions as cases among many decisions. Finally, for the legal and technical problems of Sinicized case law, this paper analyzes the retroactive effect, citation, differential technology and so on. Through the above discussion, the author believes that the bottleneck of the reform of modern judicial system in our country lies in the imperfection of the legal system, and the excellent judicial system in foreign countries should become the object of our reference. Only by combining the characteristics of China can the case law system give full play to its excellent characteristics. This combination will quickly adapt to the soil of China's politics, economy and rule of law, and make China's politics more democratic, its economy more prosperous and its rule of law healthier.
【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】：D920.4
【引证文献】
相关期刊论文 前1条
1 白章龙;余书金;晏改会;沈红波;;检察机关案例指导制度若干问题探析[J];中南大学学报(社会科学版);2012年05期
，本文编号：2492420
本文链接：https://www.wllwen.com/falvlunwen/fashilw/2492420.html
