边沁证据理论及其启示
发布时间：2018-08-08 16:51
【摘要】：杰里米·边沁(Jeremy Bentham,1748-1832)是英国历史上伟大的证据法学者。每个研究英美证据理论的学者都无法完全避开边沁证据学说产生的影响。边沁关于证据法的创作集中在1803-1813年,此时英国司法存在种种弊端、前人证据研究也存在缺陷,边沁对此进行了批判,并将功利主义价值哲学引入证据法,建构了摒弃司法弊端的自然裁判模式,还吸收当时流行的英国经验哲学的精髓,使其证据法有坚固的价值、司法理论、哲学三大基础论。边沁的证据理论建构在三元基础论上,对英美证据理论研究和司法实践产生了重大影响。在我国证据基础论与证据论和证明论三部分彼此分裂、证据立法衡量标准不明、司法证据评估方法缺失的今天,对边沁进行全面系统的研究有着重大的理论建构和立法司法参考意义。第一章讲述边沁理论产生的背景。边沁所处时代的英国司法状况存在种种弊端,笔者从法院组织、诉讼制度、法律职业三个方面入手展现19世纪初英国司法的面貌。边沁所处时代是经验哲学风靡英国的时候,边沁证据哲学基础论对经验哲学集大成者洛克的经验认识论有诸多借鉴,为了让读者更全面的了解边沁哲学基础论与洛克经验哲学的密切联系,笔者从七个方面全面介绍了洛克的经验认识论。18世纪的英国司法实践已经形成很多碎片化的证据规则,18世纪的证据法学者试图建构基础原则将零散的证据规则串联起来,吉尔伯特建构的最佳证据规则影响力最大,也为边沁提供了一个攻击的靶子,吉尔伯特的最佳证据规则以洛克盖然性理论为基础,体现在分类体系和证据排除两方面。第二章介绍边沁三大证据基础论。边沁的证据理论有价值、司法理论、哲学三大基础论。边沁作为功利主义的创始人,将功利主义运用到多个领域,笔者梳理了功利主义的证据领域含义,并将其在证据领域的适用进行了详细分析,还论述了蕴涵在司法理论中的价值选择。边沁称其司法理论基础为自然裁判模式,该裁判模式与英国当时的裁判模式是相对的,边沁摒弃了当时司法的技术性弊端创建了自然裁判模式,笔者通过对比自然裁判模式与技术裁判模式,突显边沁在司法理论方面的突破。自然裁判模式作为司法理论基础为证据理论提供了制度保障。边沁证据哲学基础论是虚构理论,分为本体论和认识论两部分。虚构本体论与洛克的“两种性质论”关系密切,虚构认识论与洛克的“二重经验论”和“两种观念论”也各有相同之处。第三章论述了边沁证据理论的具体内容:不排除原则和自由证明理论。不排除原则是在真相最大化的价值选择下得出的关于证据采纳的理论,主张不排除证据,主张不设立证据采纳规则,这与当时主流证据理论的主张相反;自由证明理论主张自由评价证据,不设立证据分量规则,这与吉尔伯特的观点相反,分歧原因是二者盖然性论述不同。自由评价证据赋予法官较大裁量权,边沁设立说服程度表和否定推测方法为法官评估证据提供指引。第四章探讨边沁证据理论对英美的影响及对我国的启示。边沁建立在三元基础论上的证据理论对英美证据理论研究和司法实践产生了重大影响。英美司法实践中关于证据采纳和证据分量的规定大体沿着边沁证据理论主张的方向发展,些许不同之处是英美证据理论丰富了边沁基础论之后作出的实践选择。边沁的基础论和具体证据理论相互融合形成融贯理论,为英美证据学界扩展证据研究范围提供了方法论。边沁证据理论在理论融贯性、证据立法衡量方法和证据评估方法等方面对我国证据理论和立法司法实践有重要参考意义。
[Abstract]:Jeremy Bentham (Jeremy Bentham, 1748-1832) is a great evidence jurisprudence in British history. Every scholar who studies the theory of British and American evidence can not completely avoid the influence of Bentham's evidence theory. Bentham's creation of evidence law is concentrated in 1803-1813 years. At this time, there are various drawbacks in the British law, and the research of previous evidence is also lacking. Bentham criticized it, and introduced the utilitarian value philosophy into the evidence law, constructed the natural judgment model of abandoning the judicial malpractice, and absorbed the essence of the popular British empirical philosophy at that time, so that the evidence law had strong value, judicial theory and philosophy three basic basic theories. Bentham's theory of evidence was constructed on the three yuan theory, It has a great influence on the theoretical research and judicial practice of the British and American evidence. In the three parts of the evidence theory and the evidence theory and the proof theory of our country, the standards of the evidence legislation are unidentified and the methods of the evaluation of the judicial evidence are missing today, the comprehensive and systematic study of Bentham has a significant theoretical construction and the legislative and judicial reference significance. The chapter describes the background of Bentham's theory. There are various drawbacks in the British judicial situation in Bentham's era. The author shows the appearance of the British judiciary in the early nineteenth Century from three aspects of the court organization, the litigation system and the legal profession. When Bentham's time is the experience philosophy is popular in Britain, Bentham's basic theory of evidence philosophy is an empirical philosophy. Rock's empirical epistemology has a lot of reference. In order to make readers understand the close relationship between Bentham's philosophy of philosophy and Rock's experience philosophy, the author comprehensively introduces Rock's experience epistemology from seven aspects. The British judicial practice in the.18 century has formed a lot of fragmented evidence rules, and the evidence jurisprudence of eighteenth Century. The best evidence rule constructed by Gilbert has the greatest influence, and it also provides a target for Bentham to attack. The best evidence rule of Gilbert is based on the theory of Rock's probability, which is embodied in the two aspects of the classification system and the exclusion of evidence. The second chapter introduces Bian Qinsan. The theory of large evidence. Bentham's theory of evidence has value, judicial theory and philosophy three basic theories. Bentham, as the founder of utilitarianism, applies utilitarianism to many fields. The author combs the meaning of utilitarianism in the field of evidence and analyzes the application of it in the field of evidence in detail. It also discusses the implication in the judicial theory. The basis of Bentham's judicial theory is the natural referee model, which is relative to the British referee model at that time. Bentham abandoned the technical malpractice of the judiciary to create the natural referee model. The author highlights Bentham's breakthrough in judicial theory by comparing the model of natural referee and the pattern of technical judgment. The model of natural referee, as the basis of judicial theory, provides institutional guarantee for the theory of evidence. Bentham's basic theory of evidence philosophy is a fictitious theory, which is divided into two parts of ontology and epistemology. The fictitious ontology is closely related to Rock's "two theories of nature", and the fictitious epistemology and Rock's "double empiricism" and "two conceptions" are also different. The third chapter discusses the specific content of Bentham's evidence theory: the principle of non exclusion and the theory of free proof. The principle of no exclusion is the theory of evidence adoption under the value choice of the truth maximization. It advocates that the evidence is not excluded and the evidence adoption rules are not set up, which is contrary to the opinion of the mainstream evidence theory at that time. The free proof theory advocates the free evaluation of evidence and does not set up the rule of evidence component. Contrary to Gilbert's view, the reason is the difference between the two parties. The free evaluation evidence gives the judge a greater discretion, and Bentham establishes the degree of persuasion and the method of negative speculation to provide guidance for the judge to evaluate the evidence. The fourth chapter discusses Bentham The influence of evidence theory on Britain and the United States and Its Enlightenment to our country. The theory of evidence established by Bentham on the three basic theory of evidence has a great influence on the research and judicial practice of the Anglo American Evidence Theory and the judicial practice. The provisions of the evidence adoption and the evidence component in the British and American judicial practice develop along the direction of the theory of Bentham's evidence theory, with some differences. It is a practical choice after the Anglo American evidence theory enriches Bentham's basic theory. Bentham's basic theory and the concrete evidence theory are fused to form the theory of coherence, which provides a methodology for the extension of the scope of evidence research in the Anglo American evidence field. The theory of Bentham's evidence theory is consistent in theory, the method of evidence legislation and the method of evidence evaluation. It has important reference significance for our country's evidence theory and legislation and judicial practice.
【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
本文编号：2172413
[Abstract]:Jeremy Bentham (Jeremy Bentham, 1748-1832) is a great evidence jurisprudence in British history. Every scholar who studies the theory of British and American evidence can not completely avoid the influence of Bentham's evidence theory. Bentham's creation of evidence law is concentrated in 1803-1813 years. At this time, there are various drawbacks in the British law, and the research of previous evidence is also lacking. Bentham criticized it, and introduced the utilitarian value philosophy into the evidence law, constructed the natural judgment model of abandoning the judicial malpractice, and absorbed the essence of the popular British empirical philosophy at that time, so that the evidence law had strong value, judicial theory and philosophy three basic basic theories. Bentham's theory of evidence was constructed on the three yuan theory, It has a great influence on the theoretical research and judicial practice of the British and American evidence. In the three parts of the evidence theory and the evidence theory and the proof theory of our country, the standards of the evidence legislation are unidentified and the methods of the evaluation of the judicial evidence are missing today, the comprehensive and systematic study of Bentham has a significant theoretical construction and the legislative and judicial reference significance. The chapter describes the background of Bentham's theory. There are various drawbacks in the British judicial situation in Bentham's era. The author shows the appearance of the British judiciary in the early nineteenth Century from three aspects of the court organization, the litigation system and the legal profession. When Bentham's time is the experience philosophy is popular in Britain, Bentham's basic theory of evidence philosophy is an empirical philosophy. Rock's empirical epistemology has a lot of reference. In order to make readers understand the close relationship between Bentham's philosophy of philosophy and Rock's experience philosophy, the author comprehensively introduces Rock's experience epistemology from seven aspects. The British judicial practice in the.18 century has formed a lot of fragmented evidence rules, and the evidence jurisprudence of eighteenth Century. The best evidence rule constructed by Gilbert has the greatest influence, and it also provides a target for Bentham to attack. The best evidence rule of Gilbert is based on the theory of Rock's probability, which is embodied in the two aspects of the classification system and the exclusion of evidence. The second chapter introduces Bian Qinsan. The theory of large evidence. Bentham's theory of evidence has value, judicial theory and philosophy three basic theories. Bentham, as the founder of utilitarianism, applies utilitarianism to many fields. The author combs the meaning of utilitarianism in the field of evidence and analyzes the application of it in the field of evidence in detail. It also discusses the implication in the judicial theory. The basis of Bentham's judicial theory is the natural referee model, which is relative to the British referee model at that time. Bentham abandoned the technical malpractice of the judiciary to create the natural referee model. The author highlights Bentham's breakthrough in judicial theory by comparing the model of natural referee and the pattern of technical judgment. The model of natural referee, as the basis of judicial theory, provides institutional guarantee for the theory of evidence. Bentham's basic theory of evidence philosophy is a fictitious theory, which is divided into two parts of ontology and epistemology. The fictitious ontology is closely related to Rock's "two theories of nature", and the fictitious epistemology and Rock's "double empiricism" and "two conceptions" are also different. The third chapter discusses the specific content of Bentham's evidence theory: the principle of non exclusion and the theory of free proof. The principle of no exclusion is the theory of evidence adoption under the value choice of the truth maximization. It advocates that the evidence is not excluded and the evidence adoption rules are not set up, which is contrary to the opinion of the mainstream evidence theory at that time. The free proof theory advocates the free evaluation of evidence and does not set up the rule of evidence component. Contrary to Gilbert's view, the reason is the difference between the two parties. The free evaluation evidence gives the judge a greater discretion, and Bentham establishes the degree of persuasion and the method of negative speculation to provide guidance for the judge to evaluate the evidence. The fourth chapter discusses Bentham The influence of evidence theory on Britain and the United States and Its Enlightenment to our country. The theory of evidence established by Bentham on the three basic theory of evidence has a great influence on the research and judicial practice of the Anglo American Evidence Theory and the judicial practice. The provisions of the evidence adoption and the evidence component in the British and American judicial practice develop along the direction of the theory of Bentham's evidence theory, with some differences. It is a practical choice after the Anglo American evidence theory enriches Bentham's basic theory. Bentham's basic theory and the concrete evidence theory are fused to form the theory of coherence, which provides a methodology for the extension of the scope of evidence research in the Anglo American evidence field. The theory of Bentham's evidence theory is consistent in theory, the method of evidence legislation and the method of evidence evaluation. It has important reference significance for our country's evidence theory and legislation and judicial practice.
【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
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