判决说理问题实证研究
发布时间：2018-11-19 15:20
【摘要】：随着司法改革的深入,司法系统正在加快裁判文书改革的步伐,提高裁判文书尤其是判决书的质量已经成为裁判文书改革的一项重要内容。判决书不仅要追求最终结果的正义,还应在判决书中体现对当事人诉讼参与权的尊重和保障。判决书的最终结论应当是建立在对判决理由的全面和理性的阐释的基础之上,经过逻辑推理、实质推理等严密论证而得出的,绝不是法官任意裁量的结果。判决书说理不仅是保障正义得以实现的手段,更是正义本身的一部分。而我国《刑事诉讼法》没有对判决书说理进行立法化的规定,刑事判决如何说理完全是由审判机关自行规范。新修改的《民事诉讼法》虽然对判决书说理部分进行了更为细化的规定,但仍是对疑难案件、普通案件和简易案件的判决书制作标准作统一规定。这种立法上的不完善使得我国判决书的说理水平远远落后于其他国家,也严重影响了我国诉讼法制化进程,使我国的判决公信力饱受质疑。本文的写作目的就是对现有的判决书说理进行实证考察和分析,力求梳理出现有判决说理所存在的问题,在此基础上探索解决改善之措施。本文将采用系统分析、比较分析和实证分析等研究方法对以上问题作出讨论研究,以求为推进司法改革、加快法制化进程贡献自己的绵薄之力。本文引言部分主要介绍司法实践部门对判决书说理现有的改革措施以及法学理论界对判决书说理所做的理论上的探讨。正文共分为五个部分：第一部分主要介绍判决说理的几种重要的路径,演绎推理、实质推理和法律解释等。法律论证活动以追求裁判的合理性、正当性和可接受性为宗旨,本文对这部分的介绍将为后面对判决书中说理路径的实践考察作出理论上的铺垫和说明。第二部分主要介绍判决可接受性这一判决说理评价标准。判决的可接受性是指判决被判决书受众接纳而不被拒绝的属性。而判决说理的最终目的就是通过严谨、充分的说理来说服当事人,使当事人接受判决,达到定纷止争之效果。因此判决是否被当事人所接受在很大程度上反映了判决的说理是否有效。文章第三部分则是在前两部分的基础上,以我国现有的判决书和历年统计数据为考察对象,对判决书说理和判决可接受性进行实证考察分析。第四部分在第三部分考察分析的基础上总结了现阶段中国判决理由的问题和不足,主要反映在对现有适用法律说理过于抽象、认定事实的理由不公开、欠缺对辩护意见的回复等。文章第五部分提出了对中国现阶段判决理由问题和不足的解决办法。立法上对判决说理进行更为完善的规范和细化最高人民法院所推行的判决书样式是加强判决说理最为直接有效的措施,而完善法官纠责制度和法官助理制度则是加强判决说理最有力的制度保障。
[Abstract]:With the deepening of judicial reform, the judicial system is speeding up the pace of the reform of judicial documents, and improving the quality of judicial documents, especially judgments, has become an important content of the reform of judicial documents. The judgment should not only pursue the justice of the final result, but also embody the respect and guarantee of the litigant's right to participate in the lawsuit. The final conclusion of the judgment should be based on the comprehensive and rational explanation of the reasons of the judgment, and it is not the result of the judge's arbitrary discretion, but the result of rigorous argumentation such as logical reasoning and substantive reasoning. Judgment reasoning is not only a means to guarantee the realization of justice, but also a part of justice itself. However, the Criminal procedure Law of our country does not legislate the judgment reasoning, and the criminal judgment reasoning is completely regulated by the judicial organs themselves. Although the new revised Civil procedure Law provides more detailed provisions on the reasoning part of the judgment, it still makes a unified stipulation on the standard of making judgments in difficult cases, ordinary cases and summary cases. This kind of legislation imperfection makes the reasoning level of our country's judgment lag far behind other countries, also seriously affects our country's procedural law system process, causes our country's judgment credibility to be questioned. The purpose of this paper is to make an empirical investigation and analysis of the existing judgment reasoning, and to try to sort out the problems existing in the judgment reasoning, and on this basis to explore the measures to solve the improvement. In order to promote the judicial reform and accelerate the process of legalization, this paper will make a discussion and study on the above problems by the methods of systematic analysis, comparative analysis and empirical analysis, so as to contribute to the process of legalization. The introduction of this paper mainly introduces the existing reform measures of judicial practice department on judgment reasoning and the theoretical discussion on judgment reasoning made by the legal theorists. The text is divided into five parts: the first part mainly introduces several important paths of judgment reasoning, deductive reasoning, substantive reasoning and legal interpretation. The purpose of legal argumentation is to pursue the reasonableness, legitimacy and acceptability of the judgment. The introduction of this part will lay a theoretical foundation and explanation for the practical investigation of the reasoning path in the judgment. The second part mainly introduces the criterion of judgment acceptability. The acceptability of judgment refers to the property that the judgment is accepted by the judgment audience but not rejected. The ultimate purpose of judgment reasoning is to persuade the parties through rigorous and sufficient reasoning, so that the parties accept the judgment and achieve the effect of settling disputes. Therefore, whether the judgment is accepted by the parties largely reflects the validity of the judgment. The third part of the article is based on the first two parts, the existing judgments and previous years of statistical data as the object of investigation, the judgment reasoning and judgment acceptability of empirical analysis. The fourth part summarizes the problems and shortcomings of Chinese judgment reasons on the basis of investigation and analysis in the third part, which is mainly reflected in the abstract of the existing applicable legal reasoning and the fact that the reasons for determining the facts are not public. A lack of response to a defence, etc. In the fifth part, the author puts forward the solution to the problem and deficiency of China's judgment at the present stage. In legislation, more perfect norms of judgment reasoning and refinement of the judgment style implemented by the Supreme people's Court are the most direct and effective measures to strengthen judgment reasoning. Perfecting the system of judge's correction and assistant is the most effective system guarantee to strengthen judgment reasoning.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D925.2
本文编号：2342739
[Abstract]:With the deepening of judicial reform, the judicial system is speeding up the pace of the reform of judicial documents, and improving the quality of judicial documents, especially judgments, has become an important content of the reform of judicial documents. The judgment should not only pursue the justice of the final result, but also embody the respect and guarantee of the litigant's right to participate in the lawsuit. The final conclusion of the judgment should be based on the comprehensive and rational explanation of the reasons of the judgment, and it is not the result of the judge's arbitrary discretion, but the result of rigorous argumentation such as logical reasoning and substantive reasoning. Judgment reasoning is not only a means to guarantee the realization of justice, but also a part of justice itself. However, the Criminal procedure Law of our country does not legislate the judgment reasoning, and the criminal judgment reasoning is completely regulated by the judicial organs themselves. Although the new revised Civil procedure Law provides more detailed provisions on the reasoning part of the judgment, it still makes a unified stipulation on the standard of making judgments in difficult cases, ordinary cases and summary cases. This kind of legislation imperfection makes the reasoning level of our country's judgment lag far behind other countries, also seriously affects our country's procedural law system process, causes our country's judgment credibility to be questioned. The purpose of this paper is to make an empirical investigation and analysis of the existing judgment reasoning, and to try to sort out the problems existing in the judgment reasoning, and on this basis to explore the measures to solve the improvement. In order to promote the judicial reform and accelerate the process of legalization, this paper will make a discussion and study on the above problems by the methods of systematic analysis, comparative analysis and empirical analysis, so as to contribute to the process of legalization. The introduction of this paper mainly introduces the existing reform measures of judicial practice department on judgment reasoning and the theoretical discussion on judgment reasoning made by the legal theorists. The text is divided into five parts: the first part mainly introduces several important paths of judgment reasoning, deductive reasoning, substantive reasoning and legal interpretation. The purpose of legal argumentation is to pursue the reasonableness, legitimacy and acceptability of the judgment. The introduction of this part will lay a theoretical foundation and explanation for the practical investigation of the reasoning path in the judgment. The second part mainly introduces the criterion of judgment acceptability. The acceptability of judgment refers to the property that the judgment is accepted by the judgment audience but not rejected. The ultimate purpose of judgment reasoning is to persuade the parties through rigorous and sufficient reasoning, so that the parties accept the judgment and achieve the effect of settling disputes. Therefore, whether the judgment is accepted by the parties largely reflects the validity of the judgment. The third part of the article is based on the first two parts, the existing judgments and previous years of statistical data as the object of investigation, the judgment reasoning and judgment acceptability of empirical analysis. The fourth part summarizes the problems and shortcomings of Chinese judgment reasons on the basis of investigation and analysis in the third part, which is mainly reflected in the abstract of the existing applicable legal reasoning and the fact that the reasons for determining the facts are not public. A lack of response to a defence, etc. In the fifth part, the author puts forward the solution to the problem and deficiency of China's judgment at the present stage. In legislation, more perfect norms of judgment reasoning and refinement of the judgment style implemented by the Supreme people's Court are the most direct and effective measures to strengthen judgment reasoning. Perfecting the system of judge's correction and assistant is the most effective system guarantee to strengthen judgment reasoning.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D925.2
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