沟通的司法：商谈理论视野下司法合法性解析
发布时间：2018-08-21 11:40
【摘要】：在社会转型时期,我国司法潜伏着多种合法性危机的诱因,因此对司法合法性地位的巩固成为了我国司法改革的根本任务。在我国的司法实践中,往往只重视形式合法性,却忽视了实质上即道德上的合法性,从而导致一系列的合法性问题的出现,例如:判决书如同一纸空文,无法得到实际的执行;司法公信力逐渐丧失,人们信访不信法等等社会现象。哈贝马斯认为,道德实质上是“主体间的对话(商谈)关系”,而这种对话关系指的是在人与人之间以商谈的方式,以媒介对伦理关系的调整、共同规范的维护和认定。以合法性的视角进行考察可以发现,经过商谈并充分论证的裁判并不仅仅是出于对司法社会效果的追求,更是一种由依法裁判原则推演出的法律义务。法官实现论证义务集中体现于判决书的说理,判决书改革又是司法改革中最没有争议并且最可行的一项。在我国司法改革过程中,无论是职业化进路还是民主化进路都追求使司法独立于权力的宰制从而实现司法的基本社会功能。将沟通引入我国的司法实践,每个话语主体通过平等、无强制地法庭辩论从而达成话语共识,增加双方当事人对判决书的认同,从而使社会效果和法律效果有机统一。在对我国当代的社会、政治、司法现状的分析与归纳基础上,以哈贝马斯的商谈理论这一视角,在分析交往理性的基础上,针对我国司法合法性现存的问题,提出沟通的司法这一论题并对其展开论述。沟通的司法为我国提供了一个新的司法合法化视角,并且为处理司法与民意难题提供了一种有效的解决方案。
[Abstract]:In the period of social transformation, there are many kinds of causes of legitimacy crisis lurking in our country's judicature, so the consolidation of the status of judicial legitimacy has become the fundamental task of judicial reform in our country. In the judicial practice of our country, we often only attach importance to the formal legitimacy, but neglect the essence of moral legitimacy, which leads to a series of legitimacy problems, such as: the judgment is like a piece of paper, it can not be carried out in practice; Judicial credibility is gradually losing, people do not believe in the law and other social phenomena. Habermas believes that morality is essentially a "dialogue (negotiation) relationship between subjects", and this kind of dialogue relation refers to the adjustment of ethical relations and the maintenance and recognition of common norms between people by means of negotiation between people. From the perspective of legality, it can be found that the adjudication after negotiation and full demonstration is not only out of the pursuit of the judicial social effect, but also a legal obligation derived from the principle of adjudication according to law. Judge's duty to realize argumentation is embodied in the reasoning of judgment, and the reform of judgment is the most undisputed and feasible one in judicial reform. In the process of judicial reform in China, both professional and democratic approaches seek to make the judiciary independent from the power system, thus realizing the basic social function of the judiciary. By introducing communication into the judicial practice of our country, each discourse subject can reach a consensus of discourse through equal, uncompulsory court debate, increase the approval of both parties to the judgment, and make the social effect and the legal effect organically unified. Based on the analysis and induction of the present social, political and judicial situation of our country, and from the perspective of Habermas's theory of negotiation, and on the basis of analyzing the reason of communication, the author aims at the existing problems of judicial legitimacy in our country. Put forward the judicial topic of communication and discuss it. The judicature of communication provides a new angle of view of judicial legalization and an effective solution to the problem of judicature and public opinion.
【学位授予单位】：广西民族大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926
本文编号：2195600
[Abstract]:In the period of social transformation, there are many kinds of causes of legitimacy crisis lurking in our country's judicature, so the consolidation of the status of judicial legitimacy has become the fundamental task of judicial reform in our country. In the judicial practice of our country, we often only attach importance to the formal legitimacy, but neglect the essence of moral legitimacy, which leads to a series of legitimacy problems, such as: the judgment is like a piece of paper, it can not be carried out in practice; Judicial credibility is gradually losing, people do not believe in the law and other social phenomena. Habermas believes that morality is essentially a "dialogue (negotiation) relationship between subjects", and this kind of dialogue relation refers to the adjustment of ethical relations and the maintenance and recognition of common norms between people by means of negotiation between people. From the perspective of legality, it can be found that the adjudication after negotiation and full demonstration is not only out of the pursuit of the judicial social effect, but also a legal obligation derived from the principle of adjudication according to law. Judge's duty to realize argumentation is embodied in the reasoning of judgment, and the reform of judgment is the most undisputed and feasible one in judicial reform. In the process of judicial reform in China, both professional and democratic approaches seek to make the judiciary independent from the power system, thus realizing the basic social function of the judiciary. By introducing communication into the judicial practice of our country, each discourse subject can reach a consensus of discourse through equal, uncompulsory court debate, increase the approval of both parties to the judgment, and make the social effect and the legal effect organically unified. Based on the analysis and induction of the present social, political and judicial situation of our country, and from the perspective of Habermas's theory of negotiation, and on the basis of analyzing the reason of communication, the author aims at the existing problems of judicial legitimacy in our country. Put forward the judicial topic of communication and discuss it. The judicature of communication provides a new angle of view of judicial legalization and an effective solution to the problem of judicature and public opinion.
【学位授予单位】：广西民族大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926
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