论民事诉讼事实认定中法官自由裁量权及其规制
发布时间：2018-08-21 10:23
【摘要】：自由裁量权是法官在审判活动中所享有的一项重要的权力，是连接法律条文和具体个案之间的纽带。法官的自由裁量权可以分为事实认定阶段的自由裁量权和法律适用阶段的自由裁量权。这两个阶段是紧密联系的，法律适用以事实认定为前提，事实认定的正确与否直接影响到案件的公正性。 事实认定阶段，法官需要对证明责任的分配、证据的收集、证据能力的确认和证明力大小的判断这些方面行使自由裁量权。通过行使自由裁量权，法官得以形成内心的确信，完成对案件事实的认识，，为法律适用打下基础。因此，法官在事实认定中如何合法、合理的行使自由裁量权，对于案件的裁判具有十分重要的意义。当前我国民事诉讼事实认定中法官自由裁量权缺少明确的运行规则，缺乏有效的制约手段，客观上为自由裁量权的滥用打开了方便之门。 针对我国当前事实认定中法官的自由裁量权客观上处于无序状态这一现实，笔者对自由裁量权理论进行系统的阐述，对事实认定中证明责任分配、证据收集、证据能力确定已经证明力大小的判断几个方面法官的自由裁量权进行详细的分析，并讨论对自由裁量权的规制措施。笔者在对自由裁量权进行细致分析的基础上，借鉴国外的有关规定，结合我国的司法实践，提出自己的若干见解，希望能够对规范我国民事诉讼事实认定中法官对自由裁量权的行使提供一定的参考。
[Abstract]:Discretion is an important power enjoyed by judges in judicial activities and a link between legal provisions and specific cases. The discretion of the judge can be divided into the discretion in the stage of fact determination and the discretion in the stage of application of law. These two stages are closely linked, the application of law is based on the fact of the premise, the fact of the right or not directly affect the fairness of the case. In the stage of fact determination, the judge should exercise his discretion in the distribution of burden of proof, the collection of evidence, the confirmation of evidence ability and the judgment of the power of proof. Through the exercise of discretion, the judge can form his inner conviction, complete the understanding of the facts of the case, and lay the foundation for the application of the law. Therefore, how to exercise discretion legally and reasonably is of great significance to the adjudication of cases. The lack of clear rules of operation and the lack of effective means of restriction in the determination of the facts of civil litigation in our country have opened the door for the abuse of discretion objectively. In view of the fact that the judge's discretion is objectively in disorder in our country, the author systematically expounds the theory of discretion, the distribution of burden of proof and the collection of evidence. This paper analyzes the discretion of the judge in several aspects of the determination of the power of proof, and discusses the regulatory measures of the discretion. On the basis of detailed analysis of discretion, the author draws lessons from the relevant regulations of foreign countries and puts forward some opinions on the basis of combining with the judicial practice of our country. The author hopes to provide some reference for the judge to exercise the discretion in standardizing the fact of civil action in our country.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D915.2
本文编号：2195403
[Abstract]:Discretion is an important power enjoyed by judges in judicial activities and a link between legal provisions and specific cases. The discretion of the judge can be divided into the discretion in the stage of fact determination and the discretion in the stage of application of law. These two stages are closely linked, the application of law is based on the fact of the premise, the fact of the right or not directly affect the fairness of the case. In the stage of fact determination, the judge should exercise his discretion in the distribution of burden of proof, the collection of evidence, the confirmation of evidence ability and the judgment of the power of proof. Through the exercise of discretion, the judge can form his inner conviction, complete the understanding of the facts of the case, and lay the foundation for the application of the law. Therefore, how to exercise discretion legally and reasonably is of great significance to the adjudication of cases. The lack of clear rules of operation and the lack of effective means of restriction in the determination of the facts of civil litigation in our country have opened the door for the abuse of discretion objectively. In view of the fact that the judge's discretion is objectively in disorder in our country, the author systematically expounds the theory of discretion, the distribution of burden of proof and the collection of evidence. This paper analyzes the discretion of the judge in several aspects of the determination of the power of proof, and discusses the regulatory measures of the discretion. On the basis of detailed analysis of discretion, the author draws lessons from the relevant regulations of foreign countries and puts forward some opinions on the basis of combining with the judicial practice of our country. The author hopes to provide some reference for the judge to exercise the discretion in standardizing the fact of civil action in our country.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D915.2
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本文编号：2195403
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