1875年《司法条例》与十九世纪英国司法改革
发布时间：2018-08-24 21:04
【摘要】：英国法能够保持其历史连续性的原因是多样的,但其中极为重要的一点,在于英国法在发展过程中,能适时地放弃或改造一些已经被证明是阻碍其发展的传统因素,调整自身以适应时代的需要。 十九世纪,面对压倒一切的工业化力量,若不及时消除司法制度中不合时宜的中世纪因素,使之系统、高效,则很难避免颠覆性的后果。因此,在整个十九世纪,各种形式的司法改革贯穿始终,而改革达到顶峰的标志,是1873年至1875年《司法条例》的颁布与实施。本文围绕《条例》自筹划至实施的全过程进行论述,试图梳理出传统法律制度为顺应时代而进行调整的轨迹,对于保持改革过程中传统与革新之间的平衡,或许能有所启发。 本文的第一章,先简单介绍了十九世纪英国的社会背景,表现了工业革命对传统社会制度造成的压力,及英国为缓解这一压力所进行的一系列制度改革。之后,概述了十九世纪初英国的司法状况,分析了传统司法制度的缺陷:主要在于各法院管辖权边界模糊、程序繁复拘于形式、普通法与衡平法在实践中的冲突,从而指出改革已经势在必行。最后,扼要说明了边沁的功利主义法学思想对司法改革的推动作用。 本文的第二章,围绕各个时期的司法委员会对改革方案的讨论与实践,展现了改革家们对改革路径的探索过程。首先,是法院内部的调整与尝试性的简化程序改革。随后,改革的重心落在了普通法与衡平法的融合。然而,坎贝尔司法委员会提出以普通法为中心的改革方案遭到了失败。最终,各方通过妥协达成了一致方案,成为《司法条例》的蓝本。 第三、第四章是本文的重点部分。其中,对《司法条例》及相关的改革措施进行了较为详细的阐述与探讨。《条例》通过将各法院合并为最高法院(包括高等法院与上诉法院),基本解决了法院之间的管辖权冲突问题。同时,各普通法法院与衡平法院在最高法院中,也保留了自身原有的印记。此外,《条例》进一步简化了程序,废除了令状及与之相对应的诉讼格式。然而,最高法院在运行过程中仍显现出不少问题,改革家们遂制定了统一程序规则,以促进普通法与衡平法程序上的融合。通过法院组织与程序的融合,最终达成了两种法律的融合,但这种融合并未带来太多实体法上的改变。 本文的第五章,分析了《司法条例》及相关改革的成就与不足。《条例》使位于伦敦的中央法院系统得到改善,并使整个国家的司法制度获得了长远的利益,但在地方司法改革上却少有作为,也未能完全解决传统司法制度遗留的弊病。尽管存在不同的评价,然而《条例》体现出既倾向保守又能够妥协的务实精神。正是这种务实的理性,使英国在整个十九世纪司法改革中维持了传统与革新的平衡,英国法的独特风格也因此得以延续。
[Abstract]:There are many reasons why English law can maintain its historical continuity, but one of the most important is that in the course of its development, it can abandon or reform some traditional factors which have been proved to be obstacles to its development and adjust itself to meet the needs of the times.
In the nineteenth century, in the face of overwhelming industrialism, it was difficult to avoid subversive consequences if unseasonable medieval factors in the judicial system were not eliminated in a timely manner to make it systematic and efficient. Thus, throughout the nineteenth century, various forms of judicial reform ran through the whole process, and the culmination of the reform was marked by the judicial provisions of 1873-1875. This paper discusses the whole process from the planning to the implementation of the Regulations, and tries to sort out the track of the adjustment of the traditional legal system to conform to the times. It may be enlightening to maintain the balance between tradition and innovation in the process of reform.
In the first chapter, the author briefly introduces the social background of Britain in the nineteenth century, shows the pressure of the Industrial Revolution on the traditional social system, and a series of institutional reforms in Britain to relieve the pressure. Then, the author summarizes the judicial situation of Britain in the early nineteenth century and analyzes the defects of the traditional judicial system. The jurisdiction boundary of the court is blurred, the procedure is complicated and formalized, and the conflict between the common law and the equity law in practice points out that the reform is imperative. Finally, the paper briefly illustrates the impetus of Bentham's utilitarian jurisprudence to the judicial reform.
In the second chapter of this paper, around the discussion and practice of the reform plan of the judicial committee in various periods, the reformers explore the reform path. First, it is the adjustment within the court and the attempt to simplify the procedural reform. The proposed common law-centered reform failed, and eventually the parties reached an agreement through compromise, which became the blueprint of the Judicial Ordinance.
Thirdly, the fourth chapter is the key part of this paper, in which the Judicial Ordinance and related reform measures are elaborated and discussed in detail. by merging the courts into the Supreme Court (including the High Court and the Court of Appeal), the conflict of jurisdiction between the courts is basically solved. At the same time, the common law courts and equity. In addition, the Ordinance further simplifies the procedure and abolishes the writ and the corresponding litigation format. However, there are still many problems in the operation of the Supreme Court, and reformers have formulated uniform procedural rules to facilitate the integration of common law and equity procedures. Through the integration of court organization and procedure, the two kinds of laws are finally integrated, but this integration does not bring about much change in substantive law.
In the fifth chapter, the author analyzes the achievements and shortcomings of the Judicial Ordinance and the related reforms, which have improved the central court system in London and made the whole country's judicial system gain long-term benefits, but have done little in the local judicial reform, and have not completely solved the problems left over by the traditional judicial system. In different opinions, however, the Ordinance embodies a pragmatic spirit of conservatism and compromise. It is this pragmatic rationality that kept the balance between tradition and innovation in the judicial reform of Britain throughout the nineteenth century, and consequently the unique style of English law was continued.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D956.1;DD916
本文编号：2202036
[Abstract]:There are many reasons why English law can maintain its historical continuity, but one of the most important is that in the course of its development, it can abandon or reform some traditional factors which have been proved to be obstacles to its development and adjust itself to meet the needs of the times.
In the nineteenth century, in the face of overwhelming industrialism, it was difficult to avoid subversive consequences if unseasonable medieval factors in the judicial system were not eliminated in a timely manner to make it systematic and efficient. Thus, throughout the nineteenth century, various forms of judicial reform ran through the whole process, and the culmination of the reform was marked by the judicial provisions of 1873-1875. This paper discusses the whole process from the planning to the implementation of the Regulations, and tries to sort out the track of the adjustment of the traditional legal system to conform to the times. It may be enlightening to maintain the balance between tradition and innovation in the process of reform.
In the first chapter, the author briefly introduces the social background of Britain in the nineteenth century, shows the pressure of the Industrial Revolution on the traditional social system, and a series of institutional reforms in Britain to relieve the pressure. Then, the author summarizes the judicial situation of Britain in the early nineteenth century and analyzes the defects of the traditional judicial system. The jurisdiction boundary of the court is blurred, the procedure is complicated and formalized, and the conflict between the common law and the equity law in practice points out that the reform is imperative. Finally, the paper briefly illustrates the impetus of Bentham's utilitarian jurisprudence to the judicial reform.
In the second chapter of this paper, around the discussion and practice of the reform plan of the judicial committee in various periods, the reformers explore the reform path. First, it is the adjustment within the court and the attempt to simplify the procedural reform. The proposed common law-centered reform failed, and eventually the parties reached an agreement through compromise, which became the blueprint of the Judicial Ordinance.
Thirdly, the fourth chapter is the key part of this paper, in which the Judicial Ordinance and related reform measures are elaborated and discussed in detail.
In the fifth chapter, the author analyzes the achievements and shortcomings of the Judicial Ordinance and the related reforms, which have improved the central court system in London and made the whole country's judicial system gain long-term benefits, but have done little in the local judicial reform, and have not completely solved the problems left over by the traditional judicial system. In different opinions, however, the Ordinance embodies a pragmatic spirit of conservatism and compromise. It is this pragmatic rationality that kept the balance between tradition and innovation in the judicial reform of Britain throughout the nineteenth century, and consequently the unique style of English law was continued.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D956.1;DD916
【参考文献】
相关博士学位论文 前1条
1 毛玲;论英国民事诉讼的演进与发展[D];中国政法大学;2004年
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