论中国法官的自由裁量权

发布时间：2018-03-17 01:24

本文选题：法官　切入点：自由裁量权　出处：《沈阳师范大学》2017年硕士论文　论文类型：学位论文

【摘要】：发源于19世纪初的概念法学将法律的确定性和逻辑自足推崇到了极致,当时的法学家认为法律的上层概念和下层概念之间是一个完备的统一体,法律不存在漏洞,即使没有能够适用于具体案件的下位概念,也能够从上位概念中抽象出来。但是到了19世纪末20世纪初,随着资本主义的发展,人们长期以来深信不疑的基本信仰——“法是确定的”,不断受到来自后现代主义、实证主义以及相对主义的怀疑和攻击,特别是在哈特与德沃金关于法律是否存在唯一正确的答案而展开的论战中表现最为突出。法学家们渐渐地开始考虑立法时是不是不可避免地会产生法律漏洞,而这些漏洞要怎么填补?法官在面对法律规范模糊不确定时是否有自主裁量的权力?答案非常肯定。法典并非完美无缺,法官在案件审理时也不能够仅仅依靠逻辑推演便得正确的、有说服力的结论。实践证明,法官自由裁量权作为司法的一种客观现象,不仅可以让法律的不确定变为确定,也可以最大化地保护个别正义。但是,在案件审判中,也会出现法官不行使或者滥用自由裁量权等种种现象,如果不能对法官行使自由裁量权进行合理的规制,不仅不利于纠纷的解决,而且还会激化社会矛盾,严重损害法律的权威性和公众对司法的信赖,导致法官自由裁量权成为败坏法治、践踏正义的恶魔。保证法官正确合理的行使权力,避免滥用权力,实现对法官自由裁量权的合理约束,进而实现裁判标准的统一,是当前我国司法理论界和实务届亟需解决的重要课题之一。本文在对法官自由裁量权的发展历程和理论基础的探讨过程中,寻找法官自由裁量权的深刻内涵,分析当下我国司法过程中法官自由裁量权的表现以及问题,进而找到影响法官自由裁量权行使的原因。在充分考虑我国法官的在行使自由裁量权时的特殊情况下,寻找法官自由裁量权行使的道路和发展方向,并为此提出几点规范意见,为社会主义法治道路的建设添砖加瓦。
[Abstract]:The conceptual jurisprudence, which originated at the beginning of 19th century, praised the certainty and logical self-sufficiency of law to the extreme. At that time, jurists thought that there was a complete unity between the upper concept and the lower concept of law, and there was no loophole in the law. Even if there is no lower concept that can be applied to specific cases, it can be abstracted from the upper concept. But by the end of 19th century and early 20th century, with the development of capitalism, People have long believed in the basic belief that "law is certain", which has been constantly attacked and suspected by postmodernism, positivism and relativism. Especially in the debate between Hart and Dworkin about whether there is the only right answer to the law. Jurists are gradually beginning to consider whether there is an inevitable legal loophole in legislation. And how do we close these holes? Do judges have the power of discretion in the face of vague and uncertain legal norms? The answer is very positive. The Code is not perfect, and judges cannot rely on logical reasoning alone to get correct and convincing conclusions. Practice has proved that the discretion of judges is an objective phenomenon in the administration of justice. Not only can the uncertainty of the law be turned into certainty, but individual justice can also be maximized. However, in the trial of a case, there will also be a variety of phenomena, such as judges' failure to exercise or abuse their discretion, etc. If the judge can not exercise the discretion of reasonable regulation, not only is not conducive to the settlement of disputes, but also will intensify social contradictions, seriously damage the authority of the law and public trust in the judiciary. As a result, the judge's discretion becomes the evil of ruining the rule of law and trampling on justice. It ensures the judge to exercise the power correctly and reasonably, avoids the abuse of power, realizes the reasonable restriction on the judge's discretion, and then realizes the unification of the judgment standard. It is one of the most important topics that need to be solved in the judicial theory and practice of our country at present. In the course of discussing the development course and theoretical basis of the judge's discretion, this paper seeks the profound connotation of the judge's discretion. This paper analyzes the performance and problems of the judge's discretion in the current judicial process of our country, and then finds out the reasons that affect the exercise of the judge's discretion. This paper looks for the way and development direction of the exercise of the judge's discretion, and puts forward some normative opinions for the construction of the socialist road of ruling by law.
【学位授予单位】：沈阳师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926.2

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