中国引入判例制度研究
发布时间：2018-08-18 14:14
【摘要】：判例制度在弥补我国制定法的不足,实现司法公正等方面具有积极作用。我国法学界曾就是否要引进判例制度产生过广泛而激烈的讨论,如今,引入判例制度建立具有中国特色的成文法与判例法相结合的司法体系已成为大多数学者的共识。我国目前司法实践中急需判例来补充现有的漏洞,但制度上我国目前仍未建立起相应的判例制度。因此,构建一套完整的适合中国国情的判例制度,不论在理论上还是实践中就显得意义重大。判例制度不同于判例法,我国要构建的是判例制度,而不是照搬普通法系的判例法。 本文从弥补制定法,政策法的缺陷,促进司法水平的提高,以及其他大陆法系国家引进判例制度的实践等方面论证了我国建立判例制度的客观需要。从两大法系相互借鉴与吸收的发展趋势以及我国的实践尤其是最高人民法院的案例指导实践,地方法院对判例制度的探索实践等方面论证了我国建立判例制度的现实可能。我国已经实行了很多年的案例指导制度,案例指导制度实行多年来积累了丰富的经验和教训,不仅为我国判例制度的建立起了先行者的作用而且也在一定程度上证明了在我国现有体制下是有可能引入判例制度的,对今后我国建立判例制度具有很大的参考价值。而且近年来我国一些地方法院也开始实践各种先例指导制度,比如河南省郑州市中原区人民法院的先例判决制度,四川省成都市中级人民法院的示范性案例制度,天津市高级人民法院的判例指导制度。这些地方法院的实践对我国未来判例制度的建设也做出了积极的探索和提供了宝贵的经验。 本文从丰富的诉讼诉求,完备的司法组织,规范的司法活动三个方面论述了我国当前已具备了创制判例制度的社会条件。 从判例的创制前提,创制主体,创制条件,创制程序,废除的程序等方面分析了我国判例的创制制度。只有在案件缺乏成文法裁判规则以及裁判规则具有指导价值时才可以创制判例。判例来源应为最高人民法院公报发布的案例,应当由最高人民法院公布案例,作为公布案例的法定机关,各级法院应将符合条件的案例整理后逐级报送到最高法院,由最高法院审定公布的可以作为判例使用。文中对判例的创判程序进行了具体论述,由判例的制作,判例的报送,判例的审定,判例公布及备案等方面组成。 从判例适用的前提条件,判例适用的原则,判例适用的技术等方面分析了我国判例的适用制度。判例并不是在任何情况下都要适用,只有在缺乏有效的制定法规范具有相似的案件事实和存在具体的判例规则时才可以适用判例。在适用判例时应以遵循判例为原则以排除判例为例外。法官在适用判例时还应注意判例技术的运用,本文从案情比较,选择判例,判例规则的引用,背离报告制度等几个方面论述了判例适用的技术。
[Abstract]:The system of case law plays an active role in making up the deficiency of our country's law and realizing judicial justice. There has been extensive and intense discussion on whether to introduce the case law system in our country. Nowadays, it has become the consensus of most scholars to introduce the case law system to establish the judicial system with the combination of written law and case law with Chinese characteristics. The judicial practice in our country urgently needs the precedent to supplement the existing loophole, but the corresponding precedent system has not been established in our country at present. Therefore, it is of great significance to construct a complete system of case law suitable for China's national conditions, both in theory and in practice. The case system is different from the case law. What our country should construct is the case system, not the case law of the common law system. This paper demonstrates the objective need of establishing the case system in China from the aspects of making up the defects of the law, the policy law, promoting the improvement of the judicial level, and the practice of introducing the case system in other countries of continental law system. From the development trend of mutual reference and absorption between the two legal systems, the practice of our country, especially the practice of the case guidance of the Supreme people's Court, and the practice of exploring the case system of the local courts, this paper demonstrates the realistic possibility of establishing the precedent system in our country. Our country has implemented the case guidance system for many years, which has accumulated rich experience and lessons over the years. It not only acts as a forerunner for the establishment of our country's precedent system, but also proves to a certain extent that it is possible to introduce the case law system under the present system of our country, which has great reference value for the establishment of the precedent system in our country in the future. Moreover, in recent years, some local courts in our country have also begun to practice various precedent guidance systems, such as the precedent judgment system of the people's court in the Zhongyuan District of Zhengzhou City, Henan Province, and the exemplary case system of the Chengdu Intermediate people's Court in Sichuan Province. The precedent guidance system of Tianjin higher people's Court. The practice of these local courts has also made a positive exploration and provided valuable experience to the construction of our country's future precedent system. This paper discusses the social conditions of the precedent system in our country from three aspects: abundant litigation demands, complete judicial organization and standardized judicial activities. This paper analyzes the system of precedent creation in our country from the aspects of precedent creation premise, creation subject, creation condition, creation procedure, annulment procedure and so on. Only in the absence of statutory rules of adjudication and when the rules of adjudication have guiding value can the case be created. The source of the case shall be the case published in the bulletin of the Supreme people's Court, and the case shall be published by the Supreme people's Court. As the statutory organ for the publication of the case, the courts at all levels shall sort out the cases that meet the requirements and submit them to the Supreme Court one by one, Published by the Supreme Court may be used as a precedent. In this paper, the procedure of creating and judging the case is discussed in detail, which is composed of the making of the case, the reporting of the case, the examination of the case, the publication of the case and the filing of the case. This paper analyzes the applicable system of our country's case from the precondition of case application, the principle of case application and the technology of case application. The case law is not applicable in any case. It can only be applied when there are similar facts and specific case rules in the absence of effective statutory law. In the application of the case law, the principle of following the case law should be followed and the exception of the case law should be excluded. The judge should also pay attention to the application of the case technology in the application of the case law. This paper discusses the applicable technology of the case law from several aspects, such as the comparison of the case, the selection of the case law, the quoting of the case rules, the deviation from the reporting system, and so on.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D925;D926.2
[Abstract]:The system of case law plays an active role in making up the deficiency of our country's law and realizing judicial justice. There has been extensive and intense discussion on whether to introduce the case law system in our country. Nowadays, it has become the consensus of most scholars to introduce the case law system to establish the judicial system with the combination of written law and case law with Chinese characteristics. The judicial practice in our country urgently needs the precedent to supplement the existing loophole, but the corresponding precedent system has not been established in our country at present. Therefore, it is of great significance to construct a complete system of case law suitable for China's national conditions, both in theory and in practice. The case system is different from the case law. What our country should construct is the case system, not the case law of the common law system. This paper demonstrates the objective need of establishing the case system in China from the aspects of making up the defects of the law, the policy law, promoting the improvement of the judicial level, and the practice of introducing the case system in other countries of continental law system. From the development trend of mutual reference and absorption between the two legal systems, the practice of our country, especially the practice of the case guidance of the Supreme people's Court, and the practice of exploring the case system of the local courts, this paper demonstrates the realistic possibility of establishing the precedent system in our country. Our country has implemented the case guidance system for many years, which has accumulated rich experience and lessons over the years. It not only acts as a forerunner for the establishment of our country's precedent system, but also proves to a certain extent that it is possible to introduce the case law system under the present system of our country, which has great reference value for the establishment of the precedent system in our country in the future. Moreover, in recent years, some local courts in our country have also begun to practice various precedent guidance systems, such as the precedent judgment system of the people's court in the Zhongyuan District of Zhengzhou City, Henan Province, and the exemplary case system of the Chengdu Intermediate people's Court in Sichuan Province. The precedent guidance system of Tianjin higher people's Court. The practice of these local courts has also made a positive exploration and provided valuable experience to the construction of our country's future precedent system. This paper discusses the social conditions of the precedent system in our country from three aspects: abundant litigation demands, complete judicial organization and standardized judicial activities. This paper analyzes the system of precedent creation in our country from the aspects of precedent creation premise, creation subject, creation condition, creation procedure, annulment procedure and so on. Only in the absence of statutory rules of adjudication and when the rules of adjudication have guiding value can the case be created. The source of the case shall be the case published in the bulletin of the Supreme people's Court, and the case shall be published by the Supreme people's Court. As the statutory organ for the publication of the case, the courts at all levels shall sort out the cases that meet the requirements and submit them to the Supreme Court one by one, Published by the Supreme Court may be used as a precedent. In this paper, the procedure of creating and judging the case is discussed in detail, which is composed of the making of the case, the reporting of the case, the examination of the case, the publication of the case and the filing of the case. This paper analyzes the applicable system of our country's case from the precondition of case application, the principle of case application and the technology of case application. The case law is not applicable in any case. It can only be applied when there are similar facts and specific case rules in the absence of effective statutory law. In the application of the case law, the principle of following the case law should be followed and the exception of the case law should be excluded. The judge should also pay attention to the application of the case technology in the application of the case law. This paper discusses the applicable technology of the case law from several aspects, such as the comparison of the case, the selection of the case law, the quoting of the case rules, the deviation from the reporting system, and so on.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D925;D926.2
【参考文献】
相关期刊论文 前5条
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