司法判决如何实现法律效果和社会效果的统一
发布时间：2018-08-09 19:28
【摘要】：所谓判决的法律效果,是指在司法实践中法官具有“法律至上”的司法理念,严格依法对各类案件进行审判,判决于法有据且判决结果符合法律的理性、精神和价值,实现了立法者的立法目的,这样也就有利于维护法律的确定性、统一性和权威性。所谓判决的社会效果,是指法官通过法律适用,使法律规范由应然变为实然,判决结果符合普通民众的心理预期和公平公正的观念,符合社会的主流价值观和社会整体利益,不仅使当事人息诉服判案结事了,而且得到社会各界和人民群众的普遍认同,对未来的当事人甚至整个社会有正面的积极的影响。法律效果和社会效果这二者之间是一对既对立、又统一的关系。法律所具有的滞后性、抽象性,与社会物质生活的变动性、具体性之间所存在的矛盾,是法律效果和社会效果对立的客观原因。法官照搬法律条文机械地适用法律,以及法官判决无视法律的规定,是法律效果和社会效果对立的主观原因。根据主客观关系厘清二者之间的关系,对于如何去实现二者之间的统一具有重要的理论意义和实践意义。法律效果和社会效果不仅具有对立的一面,也有统一的一面,即法律效果是社会效果的基础,社会效果是法律效果的目标,法律效果和社会效果统一于司法实践。法律解释是连接立法意图与司法目的的纽带,法律解释方法是实现法律效果和社会效果有机统一的有效方法,是架设两者统一的桥梁。法律解释方法,特别是“目的解释”和“社会性解释”的方法,能够克服法律的僵硬性,使法官对具体个案的判决有法律依据,能保证判决结果符合法律的理性、精神和价值,以实现立法者的立法目的,契合社会发展的需要;同时使判决结果又符合普通民众的心理预期和公平公正的观念,能对未来的当事人和社会产生积极的正面的影响,以实现法律效果和社会效果的统一。在司法实践中,法官遇到一些新型或复杂疑难的案件时,如果法律规则适用“不能”,即对于一些特别的案件出现法律空白,或有明确的法律规则可适用,但适用该规则明显不正义即产生负面的社会效果;这时法官应该适用法律原则作为判决的依据,以便能够使判决既符合法律的精神和价值,又符合普通民众的心理预期和正义观念,以使判决实现法律效果和社会效果的统一。
[Abstract]:The so-called legal effect of judgment means that in judicial practice, judges have the judicial concept of "law first", try all kinds of cases strictly according to law, and the judgment is based on the law and the result is in accordance with the rationality, spirit and value of the law. The legislative purpose of the legislator is realized, which is conducive to maintaining the certainty, unity and authority of the law. The social effect of the judgment means that the judge, through the application of the law, changes the legal norms from what ought to be, and the result of the judgment conforms to the psychological expectations of the ordinary people and the concept of fairness and justice, and conforms to the mainstream values of the society and the overall interests of the society as a whole. It not only makes the litigant settle the case, but also gets the general approval of the society and the people, which has a positive and positive influence on the future litigants and even the whole society. The relationship between legal effect and social effect is both opposite and unified. The contradiction between the lag, abstractness, the change of social material life and the concreteness of law is the objective reason of the opposition between legal effect and social effect. It is the subjective reason that the judge applies the law mechanically by copying the legal provisions and disregards the law by the judge's judgment, which is the subjective reason of the opposition between the legal effect and the social effect. It is of great theoretical and practical significance to clarify the relationship between them according to the subjective and objective relations. The legal effect and the social effect not only have the opposite side, but also have the unified side, that is, the legal effect is the foundation of the social effect, the social effect is the goal of the legal effect, and the legal effect and the social effect are unified in the judicial practice. Legal interpretation is the link between legislative intention and judicial purpose. The method of legal interpretation is an effective way to realize the organic unification of legal effect and social effect, and a bridge between them. The method of legal interpretation, especially the method of "purpose interpretation" and "social interpretation", can overcome the rigidity of law, make the judge's judgment in specific cases have legal basis, and ensure that the result of judgment conforms to the rationality, spirit and value of law. In order to realize the legislative purpose of the legislator and meet the needs of the social development, and at the same time to make the judgment result accord with the psychological expectation of the ordinary people and the concept of fairness and justice, it can have a positive and positive impact on the future parties and the society. In order to achieve the unity of legal and social effects. In judicial practice, when a judge encounters some new or complicated and difficult cases, if the rule of law is applied "can't", that is to say, for some special cases, there is a legal gap, or there are clear rules of law that can be applied. However, the application of the rule, which is manifestly unjust, has a negative social effect; at that time, the judge should apply the principles of law as the basis for the decision so that it can be brought into conformity with the spirit and value of the law, It also accords with the common people's psychological expectation and the concept of justice in order to unify the legal effect 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
本文编号：2175087
[Abstract]:The so-called legal effect of judgment means that in judicial practice, judges have the judicial concept of "law first", try all kinds of cases strictly according to law, and the judgment is based on the law and the result is in accordance with the rationality, spirit and value of the law. The legislative purpose of the legislator is realized, which is conducive to maintaining the certainty, unity and authority of the law. The social effect of the judgment means that the judge, through the application of the law, changes the legal norms from what ought to be, and the result of the judgment conforms to the psychological expectations of the ordinary people and the concept of fairness and justice, and conforms to the mainstream values of the society and the overall interests of the society as a whole. It not only makes the litigant settle the case, but also gets the general approval of the society and the people, which has a positive and positive influence on the future litigants and even the whole society. The relationship between legal effect and social effect is both opposite and unified. The contradiction between the lag, abstractness, the change of social material life and the concreteness of law is the objective reason of the opposition between legal effect and social effect. It is the subjective reason that the judge applies the law mechanically by copying the legal provisions and disregards the law by the judge's judgment, which is the subjective reason of the opposition between the legal effect and the social effect. It is of great theoretical and practical significance to clarify the relationship between them according to the subjective and objective relations. The legal effect and the social effect not only have the opposite side, but also have the unified side, that is, the legal effect is the foundation of the social effect, the social effect is the goal of the legal effect, and the legal effect and the social effect are unified in the judicial practice. Legal interpretation is the link between legislative intention and judicial purpose. The method of legal interpretation is an effective way to realize the organic unification of legal effect and social effect, and a bridge between them. The method of legal interpretation, especially the method of "purpose interpretation" and "social interpretation", can overcome the rigidity of law, make the judge's judgment in specific cases have legal basis, and ensure that the result of judgment conforms to the rationality, spirit and value of law. In order to realize the legislative purpose of the legislator and meet the needs of the social development, and at the same time to make the judgment result accord with the psychological expectation of the ordinary people and the concept of fairness and justice, it can have a positive and positive impact on the future parties and the society. In order to achieve the unity of legal and social effects. In judicial practice, when a judge encounters some new or complicated and difficult cases, if the rule of law is applied "can't", that is to say, for some special cases, there is a legal gap, or there are clear rules of law that can be applied. However, the application of the rule, which is manifestly unjust, has a negative social effect; at that time, the judge should apply the principles of law as the basis for the decision so that it can be brought into conformity with the spirit and value of the law, It also accords with the common people's psychological expectation and the concept of justice in order to unify the legal effect 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
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