司法中的利益衡量研究
发布时间：2018-08-04 16:11
【摘要】：在学术界和理论界,利益衡量被视为一种黄金方法。在实践中,我国对利益衡量的内涵和实践运用没有深刻的认识和透彻的把握,而这种方法在审判实践中却在普遍的在运用。从本质上来讲,利益衡量的过程是一种主观性行为,但对于利益衡量的方法,在实践中的运行规制和具体规范也尚未进行深入的探讨。从这个意义上讲,这个问题的研究具有重大的理论价值和现实意义。论文从以下几个方面对此问题进行探讨：第一部分是利益衡量的概述：分析了利益衡量的概念,厘定了利益衡量的构成元素,进而对利益衡量的必要性和正当性进行解析。第二部分是利益衡量的操作：先后分析了利益衡量的一般原则和适用场域,这对于明确利益衡量的适用具有重要意义,且对利益衡量中存在问题的解析是一个铺垫性的工作。第三部分是利益衡量存在问题及解决进路：针对实践中存在法官恣意的可能性：法官素质质疑,法官自我约束不够,利益衡量依据与理由不够明确,缺乏内部社会监督等问题,进行分析解构,试图规避或提出解决进路。最终,以期对利益衡量思路的拓展和规范利益衡量程序化操做出一定的贡献。
[Abstract]:In the academic and theoretical circles, interest measurement is regarded as a golden method. In practice, our country does not have a profound understanding and thorough grasp of the connotation and practice of interest measurement, but this method is widely used in trial practice. In essence, the process of interest measurement is a kind of subjective behavior, but the method of interest measurement has not been deeply discussed in practice. In this sense, the study of this issue has great theoretical value and practical significance. This paper discusses this problem from the following aspects: the first part is an overview of the measurement of interests: analysis of the concept of interest measurement, determine the constituent elements of interest measurement, and then analyze the necessity and legitimacy of interest measurement. The second part is the operation of interest measurement: it analyzes the general principle and the applicable field of interest measurement successively, which is of great significance to make clear the application of interest measurement, and it is a work of paving the way to analyze the problems existing in interest measurement. The third part is the problem of interest measurement and the way to solve the problem: in view of the possibility of judges' arbitrariness in practice, the judges' quality is questioned, the judges' self-restraint is not enough, the basis and reason of interest measurement is not clear enough, and there is a lack of internal social supervision and so on. Analyze and deconstruct, try to avoid or propose a solution approach. Finally, we hope to make some contributions to the expansion of the thought of interest measurement and the standardization of the procedure of interest measurement.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D916
本文编号：2164410
[Abstract]:In the academic and theoretical circles, interest measurement is regarded as a golden method. In practice, our country does not have a profound understanding and thorough grasp of the connotation and practice of interest measurement, but this method is widely used in trial practice. In essence, the process of interest measurement is a kind of subjective behavior, but the method of interest measurement has not been deeply discussed in practice. In this sense, the study of this issue has great theoretical value and practical significance. This paper discusses this problem from the following aspects: the first part is an overview of the measurement of interests: analysis of the concept of interest measurement, determine the constituent elements of interest measurement, and then analyze the necessity and legitimacy of interest measurement. The second part is the operation of interest measurement: it analyzes the general principle and the applicable field of interest measurement successively, which is of great significance to make clear the application of interest measurement, and it is a work of paving the way to analyze the problems existing in interest measurement. The third part is the problem of interest measurement and the way to solve the problem: in view of the possibility of judges' arbitrariness in practice, the judges' quality is questioned, the judges' self-restraint is not enough, the basis and reason of interest measurement is not clear enough, and there is a lack of internal social supervision and so on. Analyze and deconstruct, try to avoid or propose a solution approach. Finally, we hope to make some contributions to the expansion of the thought of interest measurement and the standardization of the procedure of interest measurement.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D916
【引证文献】
相关硕士学位论文 前1条
1 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：2164410
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