法官判决中法律与情理的冲突及其处理

发布时间：2018-04-28 07:14

本文选题：法律 + 情理　；参考：《西南大学》2017年硕士论文

【摘要】：情理存在于我们日常生活的方方面面,也指导着我们的生活,是人们经常运用的软性规则;法律则涉及到依法治国进程的各个领域,更多的体现为一种硬性规则模式。在社会经济急速变革的社会背景下,情理与法律也不可避免的纠合在一起,既有冲突又有互动,当这种冲突体现在司法裁判中时,往往掀起较大的舆论争议,这种情形下情理与法律的矛盾也是非常明显和尖锐的。对法官判决中法律与情理的冲突进行探讨不仅可以丰富法的运行理论、从动态层面对法治建设提供理论视角,同时也能够从法社会学与法伦理学角度对法律实施状况进行诠释和评估,具有较强的理论价值;另一方面,因该问题涉及的是现实司法实践中的问题,因此对于法官在司法实践中如何应对法律与情理的冲突,并且又当如何在判决书中恰当运用情理,从而达到司法判决社会效果与法律效果的统一,有着一定的借鉴和参考价值。通过分析,本文认为,法律与情理的冲突既有文化传统的影响,也有法律自身的原因,更有着社会发展过程中显露出来的因素。法官在司法判决中过于注重情理,就会违背司法本身的秩序性与严谨性,而单单坚持法律却会造成法律与社会民众情感的人为割裂,如何在判决中处理法律与情理的关系直接影响到法治建设的社会效果与法律效果。所以,法官要树立正确的思维模式,充分认识到在判决中正确运用情理对于解决纠纷的作用,在情理基础上坚持法律至上,也要重视在司法判决中的情理表达,懂得如何在司法判决书中做到法律与情理的统一。这样,才能使判决获得良好的社会效果又能树立法律权威,推动依法治国。文章首先主要阐述法律与情理的关系。文章首先梳理了法律与情理的概念,然后在对二者特征进行梳理的基础之上,对二者之间的关系进行了探讨,法律与情理之间既有区别又有联系。情理是法律的基础,法律是情理的保障,法律对情理产生影响,情理也会对法律进行回馈。双方既有联系又有区别,不能将二者简单的等同,要注意二者的区别。第二部分针对判决中法律与情理的冲突进行了说明,判决中法律与情理的冲突主要体现为合理与合法二者不能兼顾的情形。接下来,在文中结合现实中的案例对法官判决中法律与情理冲突进行了展示,并借此对二者冲突的原因进行了探讨分析,阐明在当今背景下法官判决中情理与法律的冲突的尖锐化以及对裁判的社会效果有重要影响。司法发展过程当中所暴露出来的问题提醒我们法治建设与司法实践必须回应社会需要,而社会民众对司法判决的反映也让我们意识到民众传统的文化思想所衍生的对司法期待也对现代司法实践产生了挑战。司法制度与现代社会发展的矛盾,民众意识感性与司法理性之间的碰撞,这都是法官在判决中处理法律与情理关系时,要去更多的思考和关注的地方。最后部分主要对法官如何在判决中正确去处理法律与情理的关系进行论证,针对上一部分所提及的影响法律与情理冲突的原因,分别从法官意识、判决书技术层面以及制度方面进行了探讨。同时也透过现在社会上出现的新案例、新情形如网购纠纷等相关案例和一则优秀的民事判决书来为法官解决民事判决中的法律与情理冲突提供一些启发。总之,以期通过这样的建议,能够使法官在处理法律与情理的关系时有更多的理性思考与裁量空间,更好地处理二者关系,做到判决的法律效果与社会效果的统一。
[Abstract]:Reason exists in all aspects of our daily life, and also guides our life. It is a soft rule that people often use. The law involves various fields of the process of administering the country according to law. It is more embodied in a hard rule pattern. In the social background of rapid social and economic transformation, the reason and the law are unavoidably entangled in the social and economic background. Together, there is both conflict and interaction. When the conflict is embodied in the judiciary, it often sets off a large public opinion dispute. In this case, the contradiction between reason and law is also very obvious and sharp. The discussion of the conflict of law and reason in the judge's judgment not only enriches the law of law, but also builds the law from the dynamic level. It provides a theoretical perspective and can also interpret and evaluate the implementation of the law from the angle of law sociology and legal ethics. On the other hand, because the problem involves the problems in the practical judicial practice, it is necessary for the judge to deal with the conflict of law and reason in the judicial practice. It has a certain reference and reference value how to apply the reasonable reason in the judgment to achieve the unity of the social effect and the legal effect of the judicial decision. Through the analysis, this paper holds that the conflict of law and reason has both the influence of the cultural tradition and the reasons of the law itself, and the factors that reveal in the process of social development. Too much attention should be made in judicial judgment, which will violate the order and rigour of the judicature itself, but the only insistence on the law will cause the human feelings between the law and the social people apart. How to deal with the relationship between law and reason in the judgment directly affects the social effect and legal effect of the construction of the rule of law. Therefore, the judge should set up the right. The mode of thinking fully recognizes the role of rational use of reason in the decision to solve the dispute, adhered to the supreme law on the basis of reason, and should attach importance to the rational expression in the judicial judgment, and understand how to achieve the unity of law and reason in the judicial judgment. In this way, the good social effect of the judgment can be set up and can be set up. The article first expounds the relationship between law and reason. The article first combs the concept of law and reason. Then, on the basis of combing the characteristics of the two, the relationship between the two is discussed, and there are differences and connections between the law and the reason. The reason is the basis of the law and the law is the basis. The legal protection, the law has an influence on the reason, the reason can also give feedback to the law. Both sides have relations and differences, can not make the two simple equivalent, we should pay attention to the difference between the two. The second part explains the conflict between the law and the reason in the judgment, the conflict between the law and the reason is mainly embodied in the rational and legal two. In the next, the article shows the conflict of the law and reason in the judge's judgment in the case of the actual case, and discusses the causes of the two conflicts, and clarifies the sharp sharpening of the conflict between the justice and the law in the judge's judgment and the important influence on the social effect of the referee. The problems exposed in the process of judicial development remind us that the construction of the rule of law and judicial practice must respond to the social needs, and the social people's reflection on the judicial judgment also makes us realize that the traditional cultural ideas derived from the traditional culture of the judiciary also have a challenge to the modern judicial practice. The conflict between the public consciousness and the judicial reason is the place where the judge should think and pay more attention when dealing with the relationship between law and reason in the judgment. The last part is mainly about how the judge correctly deals with the relationship between law and reason in the judgment. The reasons for the conflict of reason are discussed separately from the consciousness of the judges, the technical level of the judgment, and the system. At the same time, through the new cases in the society, the new cases, such as the cases of online shopping disputes and a good civil judgment, provide some inspiration for the judge to solve the conflict of law and reason in the civil judgment. Through such suggestions, the judge can make the judge have more rational thinking and discretion in dealing with the relationship between law and reason, better deal with the relationship between the two, and achieve the unity of the legal effect of the judgment and the social effect.

【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926.2

【参考文献】