“马锡五审判方式”回归的法理思考
发布时间：2018-10-29 17:54
【摘要】：“马锡五审判方式”是以抗日战争时期任陕甘宁边区高等法院陇东分庭庭长的马锡五同志的名字命名的一种审判方式,其特点是“携案卷下乡、深入农村、调查研究、实事求是地了解案情；便利群众诉讼、手续简便、不拘形式；依靠群众、教育群众、尊重群众意见”以及“审判与调解结合、注重调解”等,由于这种审判方式在当时非常贴近革命根据地的实际,收到了很好的政治效果、法律效果和社会效果。 当前,司法实务部门对“马锡五审判方式”的重提和回归热衷有加,尤其是河南省各级人民法院走在实践中的前列,其他地方法院如陕西、海南、广西等地区也在不同程度地尝试和推广“马锡五审判方式”。“开庭开到庭院里,调解调到炕头上”,巡回审判,就地办案,方便群众诉讼,是司法实务部门贯彻和落实社会主义法治理念、“司法便民”、“执法为民”精神和最高人民法院关于推进“三个重点工作”要求的具体体现,同时也表明“马锡五审判方式”一定程度上的回归。但从有关报道和社会议论中可以发现在适用“马锡五审判方式”的过程中,部分法院在理解、认识和适用“马锡五审判方式”过程中却存在偏差,甚至是误区,如没有全面理解“马锡五审判方式”的精神实质和内涵、一味强调形式上的“同化”、过分追求调解结案率、没有很好把握我国目前的实际情况、现代诉讼制度及法治的要求与“马锡五审判方式”的区别与结合等情形。 目前学界对“马锡五审判方式”讨论也较多,有从法理学、司法理念的角度进行论述,也有从司法改革、司法制度的角度进行论述,这些讨论大多是从“马锡五审判方式”产生的政治、经济、社会原因进行回顾；也有部分学者结合我国的实际国情、司法现状论述“马锡五审判方式”在当今社会的普遍适用性、“马锡五审判方式”回归的现实意义和必要性,同时也有学者对此持否定态度。但学者对“马锡五审判方式”在当今究竟是保留其精神实质、价值导向等宏观层面还是选择适用其具体的操作方式和微观的制度以及如何完善我国司法制度和纠纷解决机制等方而,却鲜有深入的研究和论述。 木文试从“马锡五审判方式”回归的原因及其在目前司法实践中存 在价值和问题进行剖析和研究,采用历史分析法、价值判断分析法和社会分析法等研究方法,并在此基础上从法理学的角度进行反思,得出若干启示,提出若干建议,以期能对进一步改进和完善我国的司法制度有所帮助。
[Abstract]:Ma Xiwu's trial method was named after Comrade Ma Xiwu, who was president of Longdong Chamber of the Supreme Court of the Shensi-Kansu-Ningxia Border region during the War of Resistance against Japan. Its characteristics are: "go to the countryside with case files, go deep into the countryside, investigate and study." To understand the facts of the case in a realistic manner; To facilitate mass litigation, simple procedures, informal form; Relying on the masses, educating the masses, respecting the opinions of the masses, and "combining trial with mediation, paying attention to mediation," and so on. Because this kind of trial method was very close to the reality of the revolutionary base area at that time, it received very good political results. Legal and social effects. At present, judicial practice departments are keen on the re-introduction and return of the "Ma Xiwu trial method," especially in Henan Province, where people's courts at all levels are at the forefront of practice. Other local courts, such as Shaanxi and Hainan, Guangxi and other regions are also trying and popularizing Ma Xiwu trial method to varying degrees. "the court session is open to the courtyard, the mediation is transferred to the Kang head," the itinerant trial, the local handling of cases, and the convenience of mass litigation are the implementation and implementation of the socialist concept of the rule of law by judicial practice departments, and "judicial convenience for the people." The spirit of "enforcing the law for the people" and the request of the Supreme people's Court to promote the "three key tasks" are embodied, and the return of "Ma Xi-wu 's trial mode" to a certain extent is also shown. However, from the relevant reports and social discussions, it can be found that in the process of applying the "Ma Xi-wu trial method", some courts have deviations or even misunderstandings in the process of understanding, recognizing and applying "Ma Xi-wu trial method". If we do not fully understand the spiritual essence and connotation of "Ma Xi-wu 's trial method," blindly emphasize the formal "assimilation", and over-pursue the mediation settlement rate, we will not have a good grasp of the current actual situation in our country. The difference and combination between the modern litigation system and the requirement of the rule of law and Ma Xiwu's trial mode. At present, there are more discussions in academic circles on "Ma Xi-wu 's trial method", including from the angle of jurisprudence and judicial idea, and also from the angle of judicial reform and judicial system. Most of these discussions are reviewed from the political, economic and social reasons of the "Ma Xi-wu trial method"; Some scholars have also discussed the general applicability of "Ma Xi-wu trial method" and the practical significance and necessity of "Ma Xi-wu trial method" returning to the society in the light of the actual situation of our country. At the same time, some scholars have a negative attitude to this. However, scholars have preserved the spiritual essence of Ma Xi-wu 's trial method at present. At the macro level, such as value orientation, we choose to apply its specific operation mode and micro system, and how to perfect our judicial system and dispute resolution mechanism, but there is little in-depth study and discussion. The paper tries to analyze and study the reasons for the return of "Ma Xi-wu trial method" and its existing value and problems in the current judicial practice, and adopts the methods of historical analysis, value judgment analysis and social analysis, and other research methods, such as historical analysis method, value judgment analysis method and social analysis method, etc. On the basis of this, the author rethinks from the angle of jurisprudence, draws some enlightenment and puts forward some suggestions, in the hope of further improving and perfecting the judicial system of our country.
【学位授予单位】：山西大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.2
本文编号：2298377
[Abstract]:Ma Xiwu's trial method was named after Comrade Ma Xiwu, who was president of Longdong Chamber of the Supreme Court of the Shensi-Kansu-Ningxia Border region during the War of Resistance against Japan. Its characteristics are: "go to the countryside with case files, go deep into the countryside, investigate and study." To understand the facts of the case in a realistic manner; To facilitate mass litigation, simple procedures, informal form; Relying on the masses, educating the masses, respecting the opinions of the masses, and "combining trial with mediation, paying attention to mediation," and so on. Because this kind of trial method was very close to the reality of the revolutionary base area at that time, it received very good political results. Legal and social effects. At present, judicial practice departments are keen on the re-introduction and return of the "Ma Xiwu trial method," especially in Henan Province, where people's courts at all levels are at the forefront of practice. Other local courts, such as Shaanxi and Hainan, Guangxi and other regions are also trying and popularizing Ma Xiwu trial method to varying degrees. "the court session is open to the courtyard, the mediation is transferred to the Kang head," the itinerant trial, the local handling of cases, and the convenience of mass litigation are the implementation and implementation of the socialist concept of the rule of law by judicial practice departments, and "judicial convenience for the people." The spirit of "enforcing the law for the people" and the request of the Supreme people's Court to promote the "three key tasks" are embodied, and the return of "Ma Xi-wu 's trial mode" to a certain extent is also shown. However, from the relevant reports and social discussions, it can be found that in the process of applying the "Ma Xi-wu trial method", some courts have deviations or even misunderstandings in the process of understanding, recognizing and applying "Ma Xi-wu trial method". If we do not fully understand the spiritual essence and connotation of "Ma Xi-wu 's trial method," blindly emphasize the formal "assimilation", and over-pursue the mediation settlement rate, we will not have a good grasp of the current actual situation in our country. The difference and combination between the modern litigation system and the requirement of the rule of law and Ma Xiwu's trial mode. At present, there are more discussions in academic circles on "Ma Xi-wu 's trial method", including from the angle of jurisprudence and judicial idea, and also from the angle of judicial reform and judicial system. Most of these discussions are reviewed from the political, economic and social reasons of the "Ma Xi-wu trial method"; Some scholars have also discussed the general applicability of "Ma Xi-wu trial method" and the practical significance and necessity of "Ma Xi-wu trial method" returning to the society in the light of the actual situation of our country. At the same time, some scholars have a negative attitude to this. However, scholars have preserved the spiritual essence of Ma Xi-wu 's trial method at present. At the macro level, such as value orientation, we choose to apply its specific operation mode and micro system, and how to perfect our judicial system and dispute resolution mechanism, but there is little in-depth study and discussion. The paper tries to analyze and study the reasons for the return of "Ma Xi-wu trial method" and its existing value and problems in the current judicial practice, and adopts the methods of historical analysis, value judgment analysis and social analysis, and other research methods, such as historical analysis method, value judgment analysis method and social analysis method, etc. On the basis of this, the author rethinks from the angle of jurisprudence, draws some enlightenment and puts forward some suggestions, in the hope of further improving and perfecting the judicial system of our country.
【学位授予单位】：山西大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.2
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