人民陪审制度中法律审与事实审分离机制研究

发布时间：2018-03-21 23:05

  本文选题：陪审制度　切入点：事实审　出处：《南京大学》2017年硕士论文　论文类型：学位论文

【摘要】：人民陪审员制度是中国特色社会主义民主政治制度在司法领域的生动实践,意义深远且重大。从世界陪审制度实践来看,陪审员的职能都包含了事实认定问题,各种制度的差异就在于是否包含决定法律适用问题。党的十八届四中全会作出的《中共中央关于全面推进依法治国若干重大问题的决定》(以下称《决定》)提出,逐步实行人民陪审员不再审理法律适用问题,只参与审理事实认定问题。《决定》和方案的指出为人民陪审制度确定了司改方向,是对现行法律规范中人民陪审员参审职能的重大调整,"逐步实行"的表述既充分体现了审慎的态度,也暗含了对人民陪审制度"事实审"与"法律审"现实困惑之出路循序渐进的探索。根据最高人民法院和司法部联合印发的《人民陪审员制度改革试点方案》,人民陪审员在案件评议过程中就事实认定问题独立发表意见,不再对法律适用问题发表意见。人民陪审员和职业法官开始分工,由法官和陪审员对事实问题共同负责,法官对法律问题独立负责。对人民陪审制度中法律审和事实审分离机制的探讨,有助于进一步发现人民陪审员在事实认定中遇到的困难和障碍,以提出有效的解决措施,保证人民陪审员在事实认定方面真正发挥作用,改变长期存在的"陪而不审"现象。本文从人民陪审员事实审与法律审分离的必要性、可能性、改革困惑、实践路径等角度揭开人民陪审员的似显非显的深沉理论的面纱,结合当前改革,探讨人民陪审员法律审和事实审分离机制研究。论文分为四部分,第一部分讲法律审与事实审分离的必要性和可能性,界定了法律审和事实审的概念,法律审有狭义和广义之分,本文持广义的法律审观点。之后分别从三个方面分析了法律审与事实审分离的必要性和可能性。第二部分分析了法律审与事实审分离机制改革的困惑,结合改革的背景,探讨事实审与法律审分离可能产生的法律冲突以及"事实问题"与"法律问题"难以区分。第三部分考察了域外法律审与事实审分离的路径。大陆法系国家和英美法系国家对事实问题和法律问题认识程度的不同,相对而言,英美法系国家对哪些问题属于案件的事实问题,哪些问题属于案件的法律问题比较明确。在分析了两大法系的基础上提出了对我国关于事实问题与法律问题区分的启示。第四部分是关于法律审与事实审分离机制的完善。从制度保障和司法实践两个方面推进人民陪审员制度法律审和事实审分离。
[Abstract]:The people's jury system is a vivid practice of the socialist democratic political system with Chinese characteristics in the judicial field. The difference between the various systems lies in whether or not the issue of deciding on the application of the law is included. The "decision of the CPC Central Committee on comprehensively promoting the Rule of Law" (hereinafter referred to as "the decision") made by the fourth Plenary session of the 18th CPC Central Committee was put forward. Step by step, the people's assessors will no longer try the application of the law, they will only participate in the determination of facts. The points out in the < decision > and the plan have set the direction for the reform of the department for the people's jury system. It is a major adjustment to the functions of the people's assessors in the current legal norms, and the expression of "gradual implementation" fully reflects a prudent attitude. It also implies a gradual exploration of the way out of the confusion over the reality of the "factual trial" and "legal trial" of the people's jury system. According to the "pilot Plan on the Reform of the people's jury system" issued jointly by the Supreme people's Court and the Ministry of Justice, people, In the course of the case review, the people's jurors independently express their opinions on the issue of finding the facts, No more opinions on the application of the law. The people's jurors and professional judges began to divide their work, and the judges and jurors were jointly responsible for the factual issues. Judges are independently responsible for legal issues. The discussion of the separation mechanism between legal and factual trials in the people's jury system is conducive to further discovering the difficulties and obstacles encountered by people's jurors in the determination of facts, in order to put forward effective measures to resolve them. To ensure that the people's jurors really play a role in the determination of the facts, and change the long-standing phenomenon of "accompany but not try". This paper discusses the necessity, possibility and reform of the separation of the people's jurors' factual trial from the legal trial. From the point of view of practice path, the author uncovers the deep theory of the people's jurors, discusses the separation mechanism between the legal trial and the factual trial of the people's jurors, and discusses the separation mechanism of the people's jurors' legal trial and the factual trial. The paper is divided into four parts. The first part talks about the necessity and possibility of separating the legal trial from the factual one, and defines the concepts of the legal trial and the factual trial, which are divided into narrow sense and broad sense. The second part analyzes the confusion of the reform of the separation mechanism between the legal trial and the factual trial, combining with the background of the reform, after analyzing the necessity and possibility of the separation of the legal trial and the factual trial from three aspects, the second part analyzes the confusion of the reform of the mechanism of the separation of the legal trial and the factual trial. This paper discusses the possible conflict of laws between the factual trial and the legal trial, and the difficulty of distinguishing between the "factual question" and the "legal question". The third part examines the path of the separation of the extraterritorial legal trial and the factual trial. The degree of understanding of factual and legal issues in the countries of the American legal system is different, Relatively speaking, common law countries are concerned about which issues belong to the factual issues of the case, On the basis of the analysis of the two legal systems, this paper puts forward the enlightenment to the distinction between the facts and the legal problems in our country. The fourth part is about the legal trial and the fact trial separator. From two aspects of system guarantee and judicial practice, the separation of legal trial and fact trial of the people's jury system is promoted.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926.2
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本文编号：1645949