疑难案件中法律确定性之证成
发布时间：2019-06-18 23:20
【摘要】： 法律有无确定性之争由来已久,特别在二十世纪日益炙热化,原因就在于自人类进入二十世纪这个发展的快车道,无论是对于民众还是政府,无论是在经济、政治还是法律领域,急剧的社会变革和转型都带来了许多难以准确估量的冲击性影响。人类社会自此步入价值多元化,权威多元化的时代,处于一种没有终极价值关怀的时代。在这种背景之下,二十世纪以前所树立的法典化形象在史无前例的疑难案件面前,显得束手无策,毫无招架之力,现实主义法学借此兴风作浪,致使法律的威信荡然无存,使法律陷入了整体性的危机之中。只有解决和论证法律在疑难案件中同样能够保持法律的确定性,才能重新在人们心中树立起法律的权威性信念,维护法律的整体性以及整个现代化事业,因为现代社会就是法制社会,就是建立在法律的权威性基础之上的。特别是在当代,维护法律在疑难案件中仍然具有确定性的信念既是必要的,也是紧迫的,当然也是可能的。更为重要的是:这一论题对于当今的中国同样具有重大的现实意义。因为当今的中国仍然在法制现代化的征程中扬帆远航,但是随着四川泸州的“遗赠案”,南京的“彭宇案”,以及广州的“许霆案”等一系列疑难案件的出现,使得国人特别是普通民众对于法律在疑难案件仍将具有确定性的信念打上了问号,对于法律的可预见性表示了怀疑。所以,本文选择了这一论题进行研究,目的在于使人们相信即使在当今层出不穷的疑难案件中法律仍将具有确定性的高尚品格是不会改变的,法律具有确定性的信念只应该加强而不是被削弱。 本文为完成论证的目的,本文打算分四章予以详细论述:第一章是前言部分,内容为论题的提出,国内外研究现状,研究方法,研究基础,研究目标;第二章是论述疑难案件、法律确定性及其相关概念的界定;第三章是问题的提出:疑难案件中法律确定性之争论,凸显这一问题在法学理论中的重要地位;第四章是问题的展开与分析:疑难案件中法律确定性之反思;第五章是问题的解决:疑难案件中法律确定性之证成;最后是本文的结语。
[Abstract]:The dispute over the certainty of law has been going on for a long time, especially in the 20th century, which is due to the fact that the rapid development of human beings in the 20th century has brought many inestimable impact on the people and the government, whether in the economic, political or legal fields. Since then, human society has entered the era of value diversification and authority diversification, in an era without ultimate value care. Under this background, the codified image established before the 20th century appears helpless and powerless in the face of unprecedented difficult cases. Realistic law makes waves through this, which makes the authority of the law disappear and the law falls into a holistic crisis. Only by solving and demonstrating that the law can also maintain the certainty of the law in difficult cases, can we re-establish the authoritative belief of the law in people's hearts, safeguard the integrity of the law and the whole modernization cause, because the modern society is the legal society, which is based on the authority of the law. Especially in the contemporary era, it is necessary, urgent and possible to maintain the belief that the law still has certainty in difficult cases. More importantly, this topic is also of great practical significance to China today. Because today's China is still sailing long distances in the process of legal modernization, but with the emergence of a series of difficult cases, such as the "legacy case" in Luzhou, Sichuan, the "Peng Yu case" in Nanjing, and the "Xu Ting case" in Guangzhou, the Chinese people, especially the ordinary people, have put a question mark on the belief that the law will still have certainty in difficult cases, and have expressed doubts about the predictability of the law. Therefore, this paper chooses this topic to study, in order to make people believe that even in the endless emergence of difficult cases, the noble character of the law will still have certainty will not change, and the belief that the law has certainty should only be strengthened rather than weakened. In order to complete the purpose of argumentation, this paper intends to discuss in detail in four chapters: the first chapter is the preface, the content is the proposition of the topic, the research status at home and abroad, the research method, the research basis, the research goal, the second chapter is to discuss the difficult case, the legal certainty and the related concept definition; The third chapter is the proposal of the problem: the debate of legal certainty in difficult cases, which highlights the important position of this problem in the theory of law; the fourth chapter is the development and analysis of the problem: the reflection of legal certainty in difficult cases; the fifth chapter is the solution of the problem: the proof of legal certainty in difficult cases; and finally, the conclusion of this paper.
【学位授予单位】：华南理工大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D90
本文编号：2501873
[Abstract]:The dispute over the certainty of law has been going on for a long time, especially in the 20th century, which is due to the fact that the rapid development of human beings in the 20th century has brought many inestimable impact on the people and the government, whether in the economic, political or legal fields. Since then, human society has entered the era of value diversification and authority diversification, in an era without ultimate value care. Under this background, the codified image established before the 20th century appears helpless and powerless in the face of unprecedented difficult cases. Realistic law makes waves through this, which makes the authority of the law disappear and the law falls into a holistic crisis. Only by solving and demonstrating that the law can also maintain the certainty of the law in difficult cases, can we re-establish the authoritative belief of the law in people's hearts, safeguard the integrity of the law and the whole modernization cause, because the modern society is the legal society, which is based on the authority of the law. Especially in the contemporary era, it is necessary, urgent and possible to maintain the belief that the law still has certainty in difficult cases. More importantly, this topic is also of great practical significance to China today. Because today's China is still sailing long distances in the process of legal modernization, but with the emergence of a series of difficult cases, such as the "legacy case" in Luzhou, Sichuan, the "Peng Yu case" in Nanjing, and the "Xu Ting case" in Guangzhou, the Chinese people, especially the ordinary people, have put a question mark on the belief that the law will still have certainty in difficult cases, and have expressed doubts about the predictability of the law. Therefore, this paper chooses this topic to study, in order to make people believe that even in the endless emergence of difficult cases, the noble character of the law will still have certainty will not change, and the belief that the law has certainty should only be strengthened rather than weakened. In order to complete the purpose of argumentation, this paper intends to discuss in detail in four chapters: the first chapter is the preface, the content is the proposition of the topic, the research status at home and abroad, the research method, the research basis, the research goal, the second chapter is to discuss the difficult case, the legal certainty and the related concept definition; The third chapter is the proposal of the problem: the debate of legal certainty in difficult cases, which highlights the important position of this problem in the theory of law; the fourth chapter is the development and analysis of the problem: the reflection of legal certainty in difficult cases; the fifth chapter is the solution of the problem: the proof of legal certainty in difficult cases; and finally, the conclusion of this paper.
【学位授予单位】：华南理工大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D90
【引证文献】
相关硕士学位论文 前1条
1 赵飞;论法律推理的不确定性及其克服[D];广东商学院;2012年
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