论当代中国司法地方化的双重解释
发布时间：2018-07-18 14:38
【摘要】：“司法地方化”是我国近些年来学术及司法界频频被提及的一个概念,从法理学的角度讲,其只是一个中性词。但落实到各个地方,因为经济、文化等诸方面差异,必将出现不同的解释,目前来看,褒贬不一,但主要集中在司法地方保护主义说与司法权因地制宜说两种观点。对此,笔者认为有必要结合我国的基本国情,在司法改革的进程中对这两种观点进行全方位的比较,从而坚定立场,表明态度,摒弃司法地方保护主义的毒瘤,在宪法法律的指引下加大民间法、习惯法、调解制度的适用,最终达到司法权因地制宜的实际效果,这便是本文的写作目的之所在。 结合实际,本文意在研究探析以下内容： 第一部分：在导言中,笔者首先阐述了中国目前社会变革的特殊时代背景,并在此基础上,着重对本文的选题意义、学术界研究现状、论文拟解决问题、特色创新以及所采取的研究方法进行了深入的分析,通过对前期工作的细致准备,夯实资料基础,从而达到写作过程的顺畅与严谨。 第二部分：对何为司法地方化这一概念进行比较阐述,一种观点认为：司法地方化是行政对于司法的干扰,阻碍司法独立的司法地方保护主义。另一种观点认为：司法地方化是一种利国利民,强调法律规范的实际运用和社会表现的变种,是在重视中国传统文化和社会实际状况下,寻求固有法资源现代价值的产物。针对以上两种观点,笔者提出自己的意见：很明显,司法地方保护主义是一种阻碍司法进步的表现,是一种人治大于法治的封建遗留思想,应该被摒弃；司法权因地制宜,民间法、习惯法、调解制度的适用是一种司法多元化,实效化的体现,只要在不违反宪法法律、公序良俗的基础上,应该鼓励这样一种司法地方化的存在与发展。 第三部分：对于这样两种名称相同,意义完全不同概念的由来进行了对比分析,并从司法地方化出现的历史原因与现实原因这两方面进行了剖析见解。具体到文章内部,司法地方化出现的历史原因根据解释认知的不同,可分为“大一统皇权至上的官本位思想”与“无诉是求,调处息争”的后遗思想,这恰恰又是司法地方保护主义说与司法权因地制宜说所产生的历史原因。而针对司法地方化出现的现实原因,结合实际不难看出,司法地方保护主义长期存在是由于：首先中国法官尤其是基层地区法官素质比较低,官本位思想严重,其次作为人性本身都具有一种排外心理,自然审判的天平会有所倾斜；最后人民法院产生,院长和法官的任免到法院的财政供应,都受着地方政府控制,自然受到地方利益掣肘。因此地方法院往往很难对异地公民与本地公民的纠纷做出公平裁决；①更严重的是,本地公民之间的纠纷如若涉及到地方政府,法院更难以秉公判决。而司法权因地制宜存在的现实原因是：首先基层地方的法律认知不完善,民间法、习惯法、调解制度适用意义重大。其次,民间纠纷形式多样,司法权因地制宜有效补充,基层法官理论有待提高,经验不可或缺。最后,司法权因地制宜是司法改革需求之所在,民间法、习惯法、调解制度的规范运用丰富司法依据。 第四部分：对司法地方化双重解释的关系进行了比较：二者适用范围相同,但司法改革意义不同；二者起源相同,但社会价值不同。 第五部分：根据我国的基本国情,从司法独立性,司法机关体制改革、经费支出、人事任免、审判途径,司法工作人员理论实践知识的相结合,免费定向性司法工作者,基层地方法官自由裁量权的规范与认可以及司法权因地制宜的实施等方面提出个人见地。 第六部分：在结语中,笔者认为：司法改革离不开司法地方化“因地制宜”的作用,坚持继承与发展相结合,合理运用民间法、习惯法和调解制度,保障司法独立,杜绝行政干预,提高法官个人素质与职业素养,适当赋予法官一定的自由裁量权,为我国司法改革之路在全国范围内顺利通畅夯实基础,最终达到以人为本,依法治国的终极目标。 本篇论文旨在对司法地方化双重解释的对比后,反驳司法地方保护主义这一概念的误区之所在,突出在一定的条件下,司法权因地制宜的意义与民间法、习惯法,调解制度的适用,并提倡基层地方法官的相对自由裁量权。创新之处主要体现在：全面客观的概念比较使得读者对司法权在地方基层的运用过程有了深刻的认识,网络审判的构想与免费定向司法工作者概念的提出是新颖而又具有现实意义的。 总之,本文对我国地方基层的法律普及与规范、司法独立与公正、民间法的运用与效力等问题的解决起到促进作用,同时对我国的司法改革的进程有着积极的影响。
[Abstract]:"Judicial localization" is a concept frequently mentioned in the academic and judicial circles of our country in recent years. From the perspective of jurisprudence, it is only a neutral word. However, it will have different interpretations due to the differences in economic and cultural aspects in various places. In this regard, I think it is necessary to make a full comparison of the two views in the process of judicial reform in accordance with the basic national conditions of our country, so as to make a firm stand, show the attitude, abandon the tumor of the judicial local protectionism, and increase the civil law and customary law under the guidance of the constitution law, The application of mediation system finally achieves the actual effect of judicial power in line with local conditions, which is the purpose of this article.
Combined with practice, this paper intends to explore the following contents:
The first part: in the introduction, the author first expounds the special background of the present social change in China, and on this basis, focuses on the significance of the topic, the status of the academic research, the analysis of the problem, the innovation of the paper and the research methods adopted, and the careful preparation of the earlier work. Data base, so as to achieve smooth and rigorous writing process.
The second part: a comparison of the concept of judicial localization. One view holds that judicial localization is the interference of the administration to the judiciary and the judicial local protectionism that hinders the independence of the judiciary. It is the product of seeking the modern value of natural law resources under the situation of Chinese traditional culture and social reality. In view of the above two views, I put forward his own opinion: it is obvious that judicial local protectionism is a manifestation of hindering the progress of the judicature, and it is a feudal legacy that is more than the rule of law, and should be abandoned. The application of legal right to local conditions, folk law, customary law and mediation system is a manifestation of judicial pluralism and actual effect. On the basis of not violating the constitution law and the public order and good customs, the existence and development of such a judicial localization should be encouraged.
The third part: the comparison and analysis of the origin of the two different concepts with the same names and different meanings, and from the two aspects of the historical and realistic reasons of the judicial localization. The thought of the official standard of the supremacy of the imperial power "and the afterthought of" no prosecution is the seeking, the mediation and interest dispute ", this is precisely the historical reason that the judicial local protectionism and the judicial power have come into being according to the local conditions. And in view of the realistic reasons of the judicial localization, it is not difficult to see that the long-term existence of the judicial local protectionism is due to the first reason. First, the judges of the Chinese judges, especially the judges at the grass-roots level, have a low quality, the official standard thought is serious, and the second as the human nature itself has a kind of xenophobia, and the balance of the natural trial will be sloped; finally, the people's court, the president and the judge's appointment and removal to the court's financial supply, are controlled by the local government and are naturally subject to local interests. Therefore, it is difficult for the local courts to make a fair decision on the disputes between the local citizens and the local citizens; (1) the more serious is that the disputes between the local citizens are more difficult to be judged by the local government and the court is more difficult to be judged. The actual reasons for the existence of the judicial power are: first, the legal cognition of the grass-roots local areas is imperfect, and the civil law is not perfect. The law, the customary law and the mediation system are of great significance. Secondly, there are various forms of civil disputes, the judicial power is effectively supplemented by local conditions, the theory of grass-roots judges needs to be improved, and the experience is indispensable. Finally, the judicial power is the place where the judicial reform needs, and the norms of civil law, customary law and mediation system apply rich judicial basis.
The fourth part: the comparison of the dual interpretation of judicial localization: the two parties have the same scope of application, but the significance of judicial reform is different; the origin of the two is the same, but the social value is different.
The fifth part: according to the basic national conditions of our country, from the judicial independence, the reform of the judicial organs, the expenditure, the personnel appointment and dismissal, the trial way, the theoretical and practical knowledge of the judicial staff, the free and directional judicial workers, the standard and recognition of the discretion of the grass-roots local judges, and the implementation of the judicial power in accordance with the local conditions. A personal view is put forward.
The sixth part: in the concluding part, the author believes that the judicial reform can not be separated from the role of local justice, adhering to the combination of inheritance and development, the rational use of civil law, customary law and mediation system, guaranteeing judicial independence, eliminating administrative intervention, improving the individual quality and professional quality of the judges, and giving the judges a certain degree of discretion. The right of measurement lays a solid foundation for China's judicial reform smoothly and smoothly throughout the country, and ultimately achieves the ultimate goal of ruling the country by law and putting people first.
This paper, after comparing the dual interpretation of judicial localization, refutes the misunderstanding of the concept of judicial local protectionism, and highlights the significance of the judicial power to local conditions and the application of civil law, customary law and mediation system under certain conditions, and advocates the relative freedom of discretion of the grass-roots method officials. Now: the comprehensive and objective concept comparison makes readers have a profound understanding of the application process of judicial power in local grass-roots. The concept of network trial and the concept of free directional judiciary are novel and realistic.
In a word, this article plays a promoting role in the Legal Popularization and standardization of local grass-roots, judicial independence and justice, the application and effectiveness of civil law, and has a positive impact on the process of judicial reform in China.
【学位授予单位】：陕西师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926
本文编号：2132218
[Abstract]:"Judicial localization" is a concept frequently mentioned in the academic and judicial circles of our country in recent years. From the perspective of jurisprudence, it is only a neutral word. However, it will have different interpretations due to the differences in economic and cultural aspects in various places. In this regard, I think it is necessary to make a full comparison of the two views in the process of judicial reform in accordance with the basic national conditions of our country, so as to make a firm stand, show the attitude, abandon the tumor of the judicial local protectionism, and increase the civil law and customary law under the guidance of the constitution law, The application of mediation system finally achieves the actual effect of judicial power in line with local conditions, which is the purpose of this article.
Combined with practice, this paper intends to explore the following contents:
The first part: in the introduction, the author first expounds the special background of the present social change in China, and on this basis, focuses on the significance of the topic, the status of the academic research, the analysis of the problem, the innovation of the paper and the research methods adopted, and the careful preparation of the earlier work. Data base, so as to achieve smooth and rigorous writing process.
The second part: a comparison of the concept of judicial localization. One view holds that judicial localization is the interference of the administration to the judiciary and the judicial local protectionism that hinders the independence of the judiciary. It is the product of seeking the modern value of natural law resources under the situation of Chinese traditional culture and social reality. In view of the above two views, I put forward his own opinion: it is obvious that judicial local protectionism is a manifestation of hindering the progress of the judicature, and it is a feudal legacy that is more than the rule of law, and should be abandoned. The application of legal right to local conditions, folk law, customary law and mediation system is a manifestation of judicial pluralism and actual effect. On the basis of not violating the constitution law and the public order and good customs, the existence and development of such a judicial localization should be encouraged.
The third part: the comparison and analysis of the origin of the two different concepts with the same names and different meanings, and from the two aspects of the historical and realistic reasons of the judicial localization. The thought of the official standard of the supremacy of the imperial power "and the afterthought of" no prosecution is the seeking, the mediation and interest dispute ", this is precisely the historical reason that the judicial local protectionism and the judicial power have come into being according to the local conditions. And in view of the realistic reasons of the judicial localization, it is not difficult to see that the long-term existence of the judicial local protectionism is due to the first reason. First, the judges of the Chinese judges, especially the judges at the grass-roots level, have a low quality, the official standard thought is serious, and the second as the human nature itself has a kind of xenophobia, and the balance of the natural trial will be sloped; finally, the people's court, the president and the judge's appointment and removal to the court's financial supply, are controlled by the local government and are naturally subject to local interests. Therefore, it is difficult for the local courts to make a fair decision on the disputes between the local citizens and the local citizens; (1) the more serious is that the disputes between the local citizens are more difficult to be judged by the local government and the court is more difficult to be judged. The actual reasons for the existence of the judicial power are: first, the legal cognition of the grass-roots local areas is imperfect, and the civil law is not perfect. The law, the customary law and the mediation system are of great significance. Secondly, there are various forms of civil disputes, the judicial power is effectively supplemented by local conditions, the theory of grass-roots judges needs to be improved, and the experience is indispensable. Finally, the judicial power is the place where the judicial reform needs, and the norms of civil law, customary law and mediation system apply rich judicial basis.
The fourth part: the comparison of the dual interpretation of judicial localization: the two parties have the same scope of application, but the significance of judicial reform is different; the origin of the two is the same, but the social value is different.
The fifth part: according to the basic national conditions of our country, from the judicial independence, the reform of the judicial organs, the expenditure, the personnel appointment and dismissal, the trial way, the theoretical and practical knowledge of the judicial staff, the free and directional judicial workers, the standard and recognition of the discretion of the grass-roots local judges, and the implementation of the judicial power in accordance with the local conditions. A personal view is put forward.
The sixth part: in the concluding part, the author believes that the judicial reform can not be separated from the role of local justice, adhering to the combination of inheritance and development, the rational use of civil law, customary law and mediation system, guaranteeing judicial independence, eliminating administrative intervention, improving the individual quality and professional quality of the judges, and giving the judges a certain degree of discretion. The right of measurement lays a solid foundation for China's judicial reform smoothly and smoothly throughout the country, and ultimately achieves the ultimate goal of ruling the country by law and putting people first.
This paper, after comparing the dual interpretation of judicial localization, refutes the misunderstanding of the concept of judicial local protectionism, and highlights the significance of the judicial power to local conditions and the application of civil law, customary law and mediation system under certain conditions, and advocates the relative freedom of discretion of the grass-roots method officials. Now: the comprehensive and objective concept comparison makes readers have a profound understanding of the application process of judicial power in local grass-roots. The concept of network trial and the concept of free directional judiciary are novel and realistic.
In a word, this article plays a promoting role in the Legal Popularization and standardization of local grass-roots, judicial independence and justice, the application and effectiveness of civil law, and has a positive impact on the process of judicial reform in China.
【学位授予单位】：陕西师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926
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