论刑事诉讼中的法官说理

发布时间：2019-01-18 17:15

【摘要】：“法者所以兴功惧暴也,律者所以定分止争也,令者所以令人知事也”①。司法所追求的原始目的是“定纷止争”,即使是在现代法治社会,司法的目的也无外乎于此。因此,如何才能使司法达到“定纷止争”之效呢?众所周知,所谓司法,即通过法官给出判决以重新界定当事人之间权利义务关系的过程。从上述关于司法概念的界定可知,在司法过程中判决的作出者——法官,毫无疑问地起着举足轻重的作用,他们的不同举动将导致司法效果的迥异。同时,多年的实践也告诉我们,欲使司法达到“定纷止争”之效,法官责任重大。所以,在诉讼中,法官应该正确履行自己的职责,严格依法办事,确保判决结果的公平公正,以实现司法的初衷。然而,仅有依法办事,公平公正地判决结果就能实现“定纷止争”吗?我国现今大量涌现的上诉上访现象告诉我们：要真正实现司法“定纷止争”之初衷,法官仅能确保判决结果公平公正是远远不够的,还须保证结果合理易懂,即法官判决应该加强说理,以更好地向公众公开判决所得结果之依据、理由等。法官如能详细地解释其所作判决之事实与理由,动之以情晓之以理,不仅具有普及法律的作用,还能促使当事人认同判决,最终使法律被遵守,纠纷得以化解。因此,可以说判决“合理易懂”和“公平公正”一样重要,都是保证司法效果实现的重要手段。笔者正是基于对法官说理之重要性的充分认识,才做此选题,希望通过本文以引起更多法官对于说理的重视,也为法官今后该如何说理提供一点建议。全文共分为四个部分：第一部分主要讲述法官说理的一般理论原理,包括法官说理的概念和价值。法官说理,顾名思义就是指法官在做出裁判时必须给出裁判理由。法官说理具有多方面的价值,不仅能够促进实体正义,也能促进程序正义,除此在外,在节约司法资源和增强法律的公信力等方面也存在很大价值。第二部分的主要内容是法官说理的域外法比较。本文从大陆法系和英美法系法官的说理风格和形成原因入手,对两大法系的法官说理进行了比较,在此基础上国外法官说理对我国的启示。第三部分主要阐述了我国法官说理存在的主要问题及其原因。法官说理存在的问题主要集中在事实认定、法律适用和合理判决的做出上。这些问题是多方面因素共同作用的结果,既有传统因素的影响,也有法官自身的原因。第四部分提出了完善我国法官说理的对策。本文针对我国法官说理存在的问题,提出从推进裁判文书改革,强化律师对法官说理的推动,加强法官的职业道德建设等多方面措施来促进法官说理。
[Abstract]:"the Dharma is so glad to fear violence, the law is so determined to stop the dispute, so that the governor so also." 1. The original aim of judicature is to settle disputes, even in modern society of ruling by law, the aim of judicature is nothing more than this. Therefore, how can we achieve the effect of "settling disputes and ending disputes" in the administration of justice? As is known to all, justice is the process of redefining the relationship between rights and obligations by a judge. From the above definition of judicial concept, it can be seen that the judge, plays an important role in the judicial process, and their different actions will lead to different judicial effects. At the same time, the practice for many years also tells us that judges have a heavy responsibility to achieve the effect of "settling disputes". Therefore, in the lawsuit, the judge should carry out his duty correctly, handle affairs strictly according to law, ensure the justice of the judgment result, in order to realize the original intention of the judicature. However, only according to law, a fair and just judgment results can achieve "settle disputes"? The phenomenon of appeal petition in large numbers in our country tells us that in order to realize the original intention of judicial "settling disputes", it is far from enough for the judge to ensure the fairness and fairness of the judgment result, and also to ensure that the result is reasonable and easy to understand. That is to say, the judge's decision should strengthen reasoning to better disclose the basis and reason of the result to the public. If the judge can explain the facts and reasons of his judgment in detail and persevere with the feeling, it will not only popularize the law, but also urge the parties to identify with the judgment, finally make the law be obeyed and the dispute resolved. Therefore, it can be said that judgment is as important as fairness and justice, and it is an important means to guarantee the realization of judicial effect. It is based on the full understanding of the importance of the judge reasoning, I do this topic, hope to attract more judges to the importance of reasoning through this article, but also for judges to provide some advice on how to reason in the future. The paper is divided into four parts: the first part mainly describes the general theory of judge reasoning, including the concept and value of judge reasoning. Judge reason, as the name implies, means that the judge in the decision must give the reasons for the decision. Judge reasoning has many values, not only to promote substantive justice, but also to promote procedural justice, in addition to this, there is great value in saving judicial resources and enhancing the public credibility of the law. The second part of the main content is the comparison of the extraterritorial law of the judge reasoning. This article starts with the judge's reasoning style and forming reason of the civil law system and the common law system, and compares the judge reasoning of the two major legal systems, on the basis of which, the enlightenment of the foreign judge reasoning to our country is given. The third part mainly expounds the main problems and reasons of our country judge reasoning. The problems of judge reasoning mainly focus on the fact-finding, the application of law and the making of reasonable judgment. These problems are the result of many factors, both traditional factors and judges themselves. The fourth part puts forward the countermeasures to perfect the reasoning of judges in our country. Aiming at the problems existing in the reasoning of judges in China, this paper puts forward many measures to promote the reasoning of judges, such as promoting the reform of adjudicative documents, strengthening the promotion of lawyers to the reasoning of judges, strengthening the construction of judges' professional ethics, and so on.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D925.2;D926.2

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