抗战时期国民政府的司法党化

发布时间：2018-01-29 10:34

本文关键词： 司法党化民族主义三民主义党义化党人化　出处：《华中师范大学》2014年硕士论文　论文类型：学位论文

【摘要】：北洋以后,司法独立已成法界共识,南京国民政府初期亦对此明文确立。但党政双轨制下基层党部与司法的紧张关系和司法官们对党治的抵触使司法一直游离于国民政府的控制之外,司法党化的呼声渐起。九一八之后,民族主义情绪的高涨,也激发了司法民族化的需求,民族化的需求继而又演变为主义化的需求。经过一系列的人事变动,持司法党化主张的居正等人接掌司法院,遂使司法党化成为司法工作的指导方针,司法党化也得以推行开来。持司法党化主张者认为司法的民族性和时代性都要求司法必须党化,以适应以党治国的要求。居正等人还就“司法独立”、“立法党化”、“司法党化”等概念详加论述,以证明在以三民主义为最高准则的国家,仅仅立法党化并不足以保证司法合乎党治,而司法的党化也并不意味着司法独立不能得到保证。在他们看来,司法党化意在使党的精神深入司法界,使司法官在独立审判的过程中自觉遵守党义。此外,实行陪审制度、编纂判解党义汇览等也是实行司法党化的重要途径。但在司法党化的推行过程中,实行陪审制度、编纂判解党义汇览未见实施,司法党化的主要举措一为考选党务工作者从事司法工作,但此举只是提高的司法官队伍中的党员比例,却也使大量不能胜任司法工作的党员混入司法队伍。第二个举措为分期调训现有法官,但这种短期的集训很难使法官对党义的认识有大的提升,而在洪兰友担任法官训练所后,法官训练偏离了最初的方向,最终走向了司法特务化。第三个举措则为在抗战时期,司法院在抗战建国纲领的旗帜下,做了一些超出司法之外的工作,以适应抗战的需要,但成绩平平。司法党化在实践上是失败的,这种失败一是由于抗战时代司法党化的支持者缺乏必要的环境去推行,二是CC系的介入使司法党化从一开始就偏离了党化的初衷,遂成为派系势力的工具。但党化的失败更深层次上还是由于党化理论内在的矛盾,既要保持司法的独立性,又要保证党的主义在司法领域的统治性,这样的党化自然只能停留在理念的层面上,缺乏可行性。
[Abstract]:After Beiyang, judicial independence has become a consensus in the legal community. However, the tension between the basic Party Department and the judiciary and the conflict of the magistrates to the Party rule made the judiciary stay out of the control of the national government in the early days of the Nanjing National Government, but under the two-track system of the Party and government, the tension between the basic Party and the judiciary. After 918, the upsurge of nationalism also stimulated the demand of judicial nationalization, and then the demand of nationalization evolved into the demand of doctrine. After a series of personnel changes. Juzheng, who holds the view of judicial party, took over the judicial court, so that the judicial party became the guiding principle of judicial work, and the judicial party became a judicial party. The advocates of judicial partisanship hold that both the nationality and the times of judicature require that the judiciary must be partnered in order to adapt to the requirements of ruling the country by the Party. Juzheng and others also refer to "judicial independence" and "legislative partization". The concept of "judicial partying" is discussed in detail to prove that in a country with the highest criterion of "three people's principles", it is not enough to guarantee that the administration of justice is in accordance with the Party's rule. In their view, judicial partisanship is intended to make the Party's spirit go deep into the judicial field, so that magistrates will consciously abide by the party's righteousness in the process of independent trial. The implementation of jury system, compilation and interpretation of the party's justice review is also an important way to implement judicial party. However, in the implementation of judicial party, the implementation of the jury system, compilation and interpretation of party justice review has not been implemented, the main measures of judicial party party for the examination of party workers engaged in judicial work. But this is only an increase in the proportion of party members in the ranks of magistrates, but it also allows a large number of party members who are not qualified for judicial work to be mixed into the judicial force. The second measure is to train existing judges in stages. However, this kind of short-term training is very difficult to make judges' understanding of the party justice greatly improved, and after Hong Lanyou served as the judge training institute, the judge training deviated from the original direction. The third one is that during the Anti-Japanese War, the Judicial Court, under the banner of the Anti-Japanese War Founding Program, did some work beyond the jurisdiction to meet the needs of the War of Resistance against Japan, but its achievements were mediocre. Judicial partisanship is a failure in practice, which is due to the lack of necessary environment for the supporters of judicial partisanship during the Anti-Japanese War. Second, the intervention of CC makes the judicial party deviate from the original intention of the party from the beginning, and then become the tool of factional force. But the failure of the party is still due to the inherent contradiction of the party theory. It is necessary to maintain the independence of the judiciary and to ensure the ruling of the Party's doctrine in the judicial field.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D693;K265

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