指导性案例的法律效力研究
发布时间：2018-11-20 16:48
【摘要】：案例指导制度是司法改革进程中产生的一项具有中国特色的司法制度,其推出有特定的时代背景。最高院《关于案例指导工作的规定》以及《关于案例指导工作的规定实施细则》,规定了"应当参照"问题,这与指导性案例的法律效力密切相关。指导性案例的法律效力研究具有理论价值,有助于完善案例指导制度所依托的理论体系;亦具有实践价值,有助于指导性案例法律效力在司法审判实践中有效运行,彰显生命力。学界对当前指导性案例的法律效力定位存在争议,主要表现于事实拘束力和规范拘束力的分野,此外还存在行政性拘束力观点。意欲揭示其当前定位,应从多方面深入地进行规范分析。"应当参照"对法官施加了一种强制性的义务,同时顾及到法官个案司法裁量的独立性。特定的拘束力由此产生。事实拘束力的描述具有一定合理性。然而,从既体现一般意义上的司法权威,又体现出特定的司法制度权威的角度,描述为制度拘束力或制度性拘束力更精准、形象。"应当参照"的主体是司法裁判者即法官,"应当参照"的对象目前限定于"裁判要点",具体要求包括查询、参照、引述、回应及说明理由要求。为研究指导性案例法律效力的司法运行现状,从法院作出裁判日期处于2016年度的、来源于中国裁判文书网的约一千份裁判文书中,筛选出234份作为样本开展实证考察。发现法院层级分布、地域分布、裁判文书类型分布、指导性案例分布皆不均衡,参照率低下,回应及说明理由状况不佳。可见司法运行现状不容乐观。通过提炼、归纳,并结合其他学者分析,发现在指导性案例层面、制度层面、司法裁判者层面皆存问题。由此可见,需采取举措切实发挥指导性案例的法律效力。指导性案例层面,"质"和"量"协同提升,注重其内容的论证严谨、充分,注重解释法律、弥补法律漏洞的功能,及时增加数量。制度层面,为"应当参照"提供立法支撑,实现未来法律效力由"制度拘束力"到"规范拘束力"的转化,并健全保障机制。司法裁判者层面,注重培养法官的参照意识,强调参照或不予参照的说理。综上,本文通过分析论证、实证考察、反思建言,以期推动指导性案例的法律效力问题研究。
[Abstract]:Case guidance system is a kind of judicial system with Chinese characteristics in the process of judicial reform. The provisions of the Supreme Court on the work of case guidance and the detailed rules for the implementation of the provisions on the work of case guidance stipulate the issue of "shall refer to", which is closely related to the legal effect of the guiding cases. The study of the legal effect of guiding cases has theoretical value and is helpful to improve the theoretical system of guiding cases. It also has practical value, which is helpful to the effective operation and vitality of instructive cases in judicial practice. There is a dispute about the legal effect of the guiding cases in the academic circles, which is mainly manifested in the distinction between factual binding force and normative binding force, in addition to the administrative binding force point of view. In order to reveal its current position, we should carry out normative analysis from many aspects. "should reference" imposes a compulsory obligation on judges, while taking into account the independence of judicial discretion of judges in individual cases. Specific restraints arise from this. The description of fact binding force has certain rationality. However, from the perspective of both the general sense of judicial authority and the specific authority of the judicial system, it is described as a more precise and vivid system binding force or institutional restraint force. " The subject of "should be referred to" is the judge, and the object of "should reference" is limited to "main points of judgment" at present. The specific requirements include inquiry, reference, quotation, response and explanation of reasons. In order to study the current situation of the judicial operation of the legal effect of instructive cases, 234 of the 1,000 adjudicative documents from the Chinese adjudicative documents network, which are in the year of 2016, are selected as samples to carry out empirical investigation. It is found that the distribution of court hierarchy, geographical distribution, type of adjudicative documents and instructive cases are all uneven, the reference rate is low, and the response and explanation of reasons are not good. It can be seen that the current situation of judicial operation is not optimistic. By refining, summing up, and combining with other scholars, we find that there are problems at the level of instructive case, institutional and judicial adjudicators. Thus, we need to take measures to effectively play the legal effect of guiding cases. At the level of instructive case, "quality" and "quantity" are promoted in coordination, and the demonstration of its contents is rigorous, sufficient, and the function of explaining the law, making up for the legal loophole is paid attention to, and the quantity is increased in time. At the institutional level, it provides legislative support for "should refer to", realizes the transformation from "institutional binding force" to "normative binding force" in the future, and perfects the safeguard mechanism. At the judicial judge level, we should pay attention to cultivating the judge's reference consciousness, emphasizing the reasoning of reference or not. In summary, this paper, through the analysis and demonstration, the empirical investigation, the reflection suggestion, in order to promote the guidance case legal effect question research.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926.2
[Abstract]:Case guidance system is a kind of judicial system with Chinese characteristics in the process of judicial reform. The provisions of the Supreme Court on the work of case guidance and the detailed rules for the implementation of the provisions on the work of case guidance stipulate the issue of "shall refer to", which is closely related to the legal effect of the guiding cases. The study of the legal effect of guiding cases has theoretical value and is helpful to improve the theoretical system of guiding cases. It also has practical value, which is helpful to the effective operation and vitality of instructive cases in judicial practice. There is a dispute about the legal effect of the guiding cases in the academic circles, which is mainly manifested in the distinction between factual binding force and normative binding force, in addition to the administrative binding force point of view. In order to reveal its current position, we should carry out normative analysis from many aspects. "should reference" imposes a compulsory obligation on judges, while taking into account the independence of judicial discretion of judges in individual cases. Specific restraints arise from this. The description of fact binding force has certain rationality. However, from the perspective of both the general sense of judicial authority and the specific authority of the judicial system, it is described as a more precise and vivid system binding force or institutional restraint force. " The subject of "should be referred to" is the judge, and the object of "should reference" is limited to "main points of judgment" at present. The specific requirements include inquiry, reference, quotation, response and explanation of reasons. In order to study the current situation of the judicial operation of the legal effect of instructive cases, 234 of the 1,000 adjudicative documents from the Chinese adjudicative documents network, which are in the year of 2016, are selected as samples to carry out empirical investigation. It is found that the distribution of court hierarchy, geographical distribution, type of adjudicative documents and instructive cases are all uneven, the reference rate is low, and the response and explanation of reasons are not good. It can be seen that the current situation of judicial operation is not optimistic. By refining, summing up, and combining with other scholars, we find that there are problems at the level of instructive case, institutional and judicial adjudicators. Thus, we need to take measures to effectively play the legal effect of guiding cases. At the level of instructive case, "quality" and "quantity" are promoted in coordination, and the demonstration of its contents is rigorous, sufficient, and the function of explaining the law, making up for the legal loophole is paid attention to, and the quantity is increased in time. At the institutional level, it provides legislative support for "should refer to", realizes the transformation from "institutional binding force" to "normative binding force" in the future, and perfects the safeguard mechanism. At the judicial judge level, we should pay attention to cultivating the judge's reference consciousness, emphasizing the reasoning of reference or not. In summary, this paper, through the analysis and demonstration, the empirical investigation, the reflection suggestion, in order to promote the guidance case legal effect question research.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926.2
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