能动司法的反思研究
发布时间：2018-08-04 09:34
【摘要】：近年，最高人民法院院长王胜俊在调研时多次强调，各级法院要充分认识当前经济社会发展的新形势，发挥审判职能，强化能动司法。江苏省高级人民法院院长公丕祥也曾说，“当代中国司法必须走司法能动之路”。对此，各路媒体纷纷大肆宣传，，高调赞扬；不少学者也积极响应，发表相关文章论述能动司法的积极意义。 无可否认，能动司法确有其积极方面的意义，但在中国当今的司法大环境中，是否适合高调适用能动司法以及把能动司法作为司法理念仍需要我们冷静思考。我国有着悠久的人治历史，几千年的封建社会，我们一直处于皇权的独裁统治之下。直到1949年，我国才真正摆脱人治的历史，但从建国以来一直到文革，我国人们的法律意识非常淡薄，文革以后，我们才有真正的法律意识。1982年，中国共产党率先垂范，在通过的新党章中规定：“党必须在宪法和法律的范围内活动。”在这一年，此精神写入宪法，直到1999年，“依法治国”理念才写入我国宪法。对于大多数百姓而言，法律意识和法治理念不过刚刚起步，现在我们又开始谈能动司法确实为时过早。因此我们有必要对能动司法进行反思，通过分析能动司法的理论困境和现实困境，为能动司法在中国的适用寻找出路，真正实现社会的公平和正义。 全文共分为五个部分，简述如下： 引言部分简单交代了我国能动司法出现的大背景，为接下来分析能动司法提供时代环境。 第一部分主要论述了能动司法的内涵，通过对美国司法能动主义的界定来探讨中国能动司法的内涵。另外，调解也是能动司法的一个主要方面，最高人民法院确定了“调解优先，调判结合”的工作原则。 第二部分主要分析了能动司法在我国运行的理论困境。法治、民主和正义是司法活动的首要目的，通过对法治、民主和正义三个方面的讨论，从法理上来论证能动司法在我国是不可行的。 第三部分主要分析了能动司法在我国运行的现实困境。因为中国司法独立尚未真正实现，法官整体素质较低及司法效率亟需提高，这三个方面严重限制了能动司法在中国实施的效果发挥。 第四部分是对能动司法在中国运行的一些建议和思考。尽管能动司法不适合中国的现状，但能动司法的实施已是大势所趋。通过对能动司法坚持的原则，司法克制理念的界定及能动司法与政治关系的探讨，期望能对能动司法的实施提供一些思路。
[Abstract]:In recent years, the President of the Supreme people's Court, Wang Shengjun, has repeatedly stressed that courts at all levels should fully understand the new situation of current economic and social development, give play to judicial functions, and strengthen the active administration of justice. Gong Pixiang, president of Jiangsu Provincial higher people's Court, once said, "Contemporary Chinese judicature must take the path of judicial action." In response to this, various media have hype, high praise; many scholars also responded positively, published related articles on the positive significance of active justice. There is no denying that active justice has its positive significance, but in the current judicial environment in China, it is still necessary for us to think calmly whether it is suitable to apply active justice in a high profile and to regard active justice as a judicial concept. China has a long history of rule by man, thousands of years of feudal society, we have been under the dictatorship of imperial power. It was not until 1949 that China really got rid of the history of the rule of man. But from the founding of the people to the Cultural Revolution, our people's legal consciousness was very weak. After the Cultural Revolution, we did not have a real legal consciousness. In 1982, the Communist Party of China set an example. In the new Constitution adopted, it is stated that "the Party must act within the scope of the Constitution and the law." In this year, this spirit was written into the Constitution, until 1999, the concept of "rule of law" was written into the Constitution of our country. For most people, legal awareness and the idea of the rule of law are just beginning, and it is too early to start talking about active justice. Therefore, it is necessary for us to reflect on the active judicature, to find a way out for the application of active judicature in China by analyzing the theoretical and practical predicament of the active judicature, and to realize the social fairness and justice. The full text is divided into five parts, as follows: the introduction simply explains the background of the emergence of active justice in China, and provides the time environment for the analysis of active justice. The first part mainly discusses the connotation of active judicature and probes into the connotation of Chinese active judicature through the definition of American judicial activism. In addition, mediation is also a major aspect of active justice. The Supreme people's Court has established the working principle of "mediation first, mediation combined". The second part mainly analyzes the theoretical dilemma of active justice in our country. The rule of law, democracy and justice are the primary purposes of judicial activities. Through the discussion of the three aspects of rule of law, democracy and justice, it is proved that active justice is not feasible in our country. The third part mainly analyzes the practical dilemma of active justice in our country. Because the judicial independence in China has not been really realized, the lower quality of judges and the urgent need to improve judicial efficiency, these three aspects have seriously restricted the implementation of active justice in China. The fourth part is some suggestions and thoughts on the active judicature in China. Although active justice is not suitable for the present situation in China, the implementation of active justice is the trend of the times. Based on the principle of active judicature, the definition of judicial restraint concept and the relationship between active judicature and politics, the author hopes to provide some ideas for the implementation of active judicature.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926
本文编号：2163421
[Abstract]:In recent years, the President of the Supreme people's Court, Wang Shengjun, has repeatedly stressed that courts at all levels should fully understand the new situation of current economic and social development, give play to judicial functions, and strengthen the active administration of justice. Gong Pixiang, president of Jiangsu Provincial higher people's Court, once said, "Contemporary Chinese judicature must take the path of judicial action." In response to this, various media have hype, high praise; many scholars also responded positively, published related articles on the positive significance of active justice. There is no denying that active justice has its positive significance, but in the current judicial environment in China, it is still necessary for us to think calmly whether it is suitable to apply active justice in a high profile and to regard active justice as a judicial concept. China has a long history of rule by man, thousands of years of feudal society, we have been under the dictatorship of imperial power. It was not until 1949 that China really got rid of the history of the rule of man. But from the founding of the people to the Cultural Revolution, our people's legal consciousness was very weak. After the Cultural Revolution, we did not have a real legal consciousness. In 1982, the Communist Party of China set an example. In the new Constitution adopted, it is stated that "the Party must act within the scope of the Constitution and the law." In this year, this spirit was written into the Constitution, until 1999, the concept of "rule of law" was written into the Constitution of our country. For most people, legal awareness and the idea of the rule of law are just beginning, and it is too early to start talking about active justice. Therefore, it is necessary for us to reflect on the active judicature, to find a way out for the application of active judicature in China by analyzing the theoretical and practical predicament of the active judicature, and to realize the social fairness and justice. The full text is divided into five parts, as follows: the introduction simply explains the background of the emergence of active justice in China, and provides the time environment for the analysis of active justice. The first part mainly discusses the connotation of active judicature and probes into the connotation of Chinese active judicature through the definition of American judicial activism. In addition, mediation is also a major aspect of active justice. The Supreme people's Court has established the working principle of "mediation first, mediation combined". The second part mainly analyzes the theoretical dilemma of active justice in our country. The rule of law, democracy and justice are the primary purposes of judicial activities. Through the discussion of the three aspects of rule of law, democracy and justice, it is proved that active justice is not feasible in our country. The third part mainly analyzes the practical dilemma of active justice in our country. Because the judicial independence in China has not been really realized, the lower quality of judges and the urgent need to improve judicial efficiency, these three aspects have seriously restricted the implementation of active justice in China. The fourth part is some suggestions and thoughts on the active judicature in China. Although active justice is not suitable for the present situation in China, the implementation of active justice is the trend of the times. Based on the principle of active judicature, the definition of judicial restraint concept and the relationship between active judicature and politics, the author hopes to provide some ideas for the implementation of active judicature.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926
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本文编号：2163421
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