论我国民事判决书的结构和说理方法改革

发布时间：2018-08-04 12:31

【摘要】：判决书,在每一个民主法治国家都有着举足轻重的地位。而判决理由是判决书的灵魂,一份理由充分逻辑严明的判决书,不仅能够妥善平息民事纠纷,促使当事人快速履行自己的法律义务,缓解社会矛盾,还能够帮助一个国家实现法制宣传教育的目的。我国自古以来便十分重视判决书的说理。近年来,通过新《民事诉讼法》、十八届四中全会报告、2016年《人民法院五年改革纲要》以及《人民法院民事裁判文书制作规范》等重要的法律、政策文件,法官在判决书中说理的义务已获得了充分的重视。这为进一步探究增强判决书说理性的方法奠定了坚实的基础。文章的第一章通过比较研究的方法,寻找我国判决书结构的改革方向。判决书的结构是判决书的基本框架,确定了判决书的基本要素。被科学设置的判决书的结构和内容,能够辅助法官理顺论证思路,沿着正确的逻辑方向撰写判决理由。判决书结构的改革,可以从案件繁简分流、判决主文位置的调整、本案事实与判决理由的分离三个方面入手,以增强判决书说理的针对性和准确性。文章的第二章和第三章主要论述如何具体地实现判决书的说理。第二章介绍了形式逻辑的论证方法,结合我国判决书说理的不足之处,探究如何在判决理由部分更好地实现判决书说理。法官在撰写判决理由时,需要注意阐述选择法律规范的理由;在事实认定时,需要评价证据,并增强要件事实与证据的联系;进行函摄之前,需要解构法律,并将事实要件化,以缩小法律与事实之间的逻辑跨度,以此展现法律规范与案件事实的契合程度,使法律规范中的法律后果能够有理有据地成为案件的判决结果。第三章介绍了非形式逻辑的论证方法。主要包括利益衡量、探效推理、立法目的考量和习惯民俗四种方法的具体分析思路,以及适用条件。通过形式逻辑论证为主,非形式逻辑论证为辅的论证方法,能够同时保障判决理由的合法性和合理性。文章的第四部分论述了判决书说理的保障措施。增强判决书的说理性首先需要改革法官遴选和培训制度,构建高质量的法官队伍,并通过为法官配备专门的法官助理和适当减轻法官责任的方法保障法官的说理工作。其次,确立法官心证公开和释明义务,通过加强程序中的对话来增强当事人对判决理由的理解能力。其三,建立更为完善的案例指导制度,给予各级法院的法官更具可操作性的判决理由写作指导。最后,通过审级制度改革划清不同级别法院的功能,让各级法官能够在本审级范围内有侧重地进行说理。
[Abstract]:Judgment, in every democratic country under the rule of law has a pivotal position. And the reason for judgment is the soul of the judgment. A well-reasoned and well-reasoned judgment can not only properly settle civil disputes, but also prompt the parties concerned to fulfil their legal obligations quickly and ease social contradictions. It can also help a country achieve the goal of legal publicity and education. Since ancient times, our country has attached great importance to the reasoning of the judgment. In recent years, important laws and policy documents have been adopted, such as the new Civil procedure Law, the report of the fourth Plenary session of the 18th CPC Central Committee, the 2016 outline of the Five-year Reform of the people's Court, and the guidelines for the production of Civil judgment documents of the people's Court. The judge's reasoned duty in the judgment has been taken seriously. This has laid a solid foundation for further exploring the method of enhancing the rationality of judgment theory. The first chapter is to find the reform direction of our country's judgement structure through the method of comparative study. The structure of the judgment is the basic frame of the judgment and determines the basic elements of the judgment. The structure and content of the judgment set by science can assist the judge to straighten out the reasoning ideas and write the reasons for the judgment along the correct logical direction. In order to enhance the pertinence and accuracy of judgment reasoning, the reform of judgment structure can be started from three aspects: the diversion of the case, the adjustment of the position of the judgment subject, the separation of the facts of the case and the reasons of the judgment, in order to enhance the pertinence and accuracy of the judgment reasoning. The second and third chapters mainly discuss how to realize the reasoning of judgment. The second chapter introduces the formal logic of the argumentation method, combined with the shortcomings of judgment reasoning in China, explore how to better achieve judgment reasoning in the judgment reason part. When writing the reasons for the judgment, the judge should pay attention to the reasons for choosing the legal norms; in determining the facts, he needs to evaluate the evidence and strengthen the link between the facts and the evidence; before taking a letter, he needs to deconstruct the law and turn the facts into elements. In order to reduce the logical span between law and fact, and to show the degree of conformity between legal norms and facts of case, the legal consequences in legal norms can be the result of judgment in a case with reasonable evidence. The third chapter introduces the argumentation method of non-formal logic. It mainly includes four kinds of methods, such as benefit measurement, effect reasoning, legislative purpose consideration and customary folklore, as well as the applicable conditions. The method of formal logic argumentation, supplemented by non-formal logic argumentation, can guarantee the legitimacy and rationality of the reason of judgment at the same time. The fourth part of the article discusses the safeguard measures of judgment reasoning. To enhance the rationality of judgment, it is necessary to reform the system of judge selection and training, to construct a high-quality team of judges, and to ensure the reasoning of judges by providing judges with specialized assistants and by reducing the responsibilities of judges. Secondly, we should establish the judge's obligation to disclose and explain evidence and strengthen the parties' ability to understand the reasons of judgment by strengthening the dialogue in the procedure. Third, to establish a more perfect case guidance system, to give judges at all levels of court more operational guidance on the writing of reasons for judgment. Finally, through the reform of the trial level system, the functions of the different levels of courts are clarified, so that the judges at all levels can be reasoned within the scope of the trial level.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.1

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