美國司法獨(dú)立從法律文本規(guī)定到實(shí)際確立的歷史考察
發(fā)布時(shí)間：2018-10-05 11:53
【摘要】： 美國的司法獨(dú)立制度是世界司法獨(dú)立制度的典型代表,它對美國社會的民主制度及當(dāng)時(shí)和以后的社會發(fā)展道路產(chǎn)生了深遠(yuǎn)的影響,并成為今天許多國家效仿的楷模和研究對象。對于美國司法獨(dú)立的確立及其標(biāo)準(zhǔn),不同研究者提出了不同的觀點(diǎn)。本文認(rèn)為,美國的司法獨(dú)立從法律文本規(guī)定到實(shí)際確立經(jīng)歷了一個(gè)逐步發(fā)展的過程,直到1805年“蔡斯彈劾案”才最終在實(shí)踐中確立起來。 本文主要內(nèi)容分為四個(gè)部分： 第一部分,回顧了美國憲法頒布前司法的發(fā)展概況。盡管這一時(shí)期的司法繼承和發(fā)展了英國的司法傳統(tǒng),設(shè)立了法院,任命了法官,在司法的獨(dú)立性上不斷進(jìn)步,但從司法的發(fā)展現(xiàn)實(shí)來看,這一時(shí)期的司法沒有也不可能具備獨(dú)立地位。司法機(jī)關(guān)沒有獲得獨(dú)立的地位,也沒有獲得獨(dú)立的權(quán)力,其他機(jī)構(gòu)可以干涉甚至改變司法機(jī)關(guān)的判決；法官也沒有獲得獨(dú)立的職位,存在法官兼任現(xiàn)象；法官的地位也不穩(wěn)固,其任命權(quán)和薪酬都控制在英國政府手中。 第二部分,分析了憲法頒布后對司法獨(dú)立的法律文本規(guī)定。1787年聯(lián)邦憲法和《1789年司法法》在法官地位(主要是任期和薪酬)、司法權(quán)適用范圍、司法機(jī)構(gòu)設(shè)置及司法的具體運(yùn)行等方面對司法獨(dú)立做了具體詳實(shí)的規(guī)定,并通過后者建立了聯(lián)邦最高法院和各級法院。但是,法律文本的規(guī)定能否保證司法的獨(dú)立地位,還需要在實(shí)踐中的檢驗(yàn)。 第三部分,論述了司法獨(dú)立在實(shí)踐中面臨的困境及其原因。盡管憲法和《1789年司法法》對司法獨(dú)立做了一系列規(guī)定,但由于歷史和現(xiàn)實(shí)的原因,司法在實(shí)踐中沒有實(shí)現(xiàn)獨(dú)立。法官依然有兼職行為,法官在黨爭形勢下成為政黨斗爭的工具,法官面臨彈劾的威脅,這些現(xiàn)實(shí)使司法還無法實(shí)現(xiàn)獨(dú)立。究其原因,司法在社會上還沒有獲得足夠的尊重,司法依然缺少維系獨(dú)立的制衡權(quán)力,彈劾權(quán)標(biāo)準(zhǔn)濫用,使司法在現(xiàn)實(shí)中難以實(shí)現(xiàn)獨(dú)立。 第四部分,論述了司法在實(shí)踐中逐步獨(dú)立的過程。司法要實(shí)現(xiàn)獨(dú)立,就要克服上述現(xiàn)象,解決造成其無法獨(dú)立的因素。通過判案,司法不斷地爭取著維系獨(dú)立的制衡權(quán)力,并終于在“馬伯里訴麥迪遜案”中獲得這一權(quán)力。在隨后的“蔡斯彈劾案”中,不僅制衡權(quán)力得到進(jìn)一步鞏固,彈劾法官的標(biāo)準(zhǔn)也得以謹(jǐn)慎和明確,而且,通過“蔡斯彈劾案”,對司法的尊重得以增強(qiáng),司法具備了相對超黨派的至上地位。阻礙司法獨(dú)立的主要因素得以解決,司法終于在實(shí)踐中實(shí)現(xiàn)獨(dú)立,成為一種司法審判原則和政治原則。
[Abstract]:The judicial independence system of the United States is a typical representative of the judicial independence system in the world. It has exerted a profound influence on the democratic system of American society and the way of social development at that time and later, and has become a model and research object that many countries follow today. Different researchers have put forward different views on the establishment and standards of judicial independence in the United States. This paper holds that the judicial independence of the United States has experienced a gradual development from the stipulation of the legal text to the actual establishment, and it was not until 1805 that the impeachment case of Chase was finally established in practice. The main content of this paper is divided into four parts: the first part reviews the development of the U.S. Constitution before the promulgation of the judicial situation. Although this period of judicial succession and development of the British judicial tradition, the establishment of courts, appointed judges, in the judicial independence of the progress, but from the development of the reality of the judiciary, The judiciary of this period did not and could not have independent status. The judiciary has not been given independent status or powers, and other bodies can interfere with or even change the decisions of the judiciary; judges have not been granted independent positions, and there is a phenomenon of judges serving concurrently; the status of judges is also precarious. Its power of appointment and remuneration are in the hands of the British government. In the second part, the author analyzes the legal provisions on judicial independence after the promulgation of the Constitution. The Federal Constitution of 1787 and the Judicial Act of 1789 are applied to the status of judges (mainly the term of office and remuneration), the scope of application of judicial power. The establishment of judicial institutions and the specific operation of the judiciary have made specific and detailed provisions on judicial independence, and through the latter, the Federal Supreme Court and courts at all levels have been established. However, whether the provisions of legal texts can guarantee the independent status of the judiciary still needs to be tested in practice. The third part discusses the dilemma and reasons of judicial independence in practice. Although the Constitution and the Judicial Law of 1789 make a series of provisions on judicial independence, due to historical and practical reasons, judicial independence has not been realized in practice. Judges still have part-time activities, judges have become a tool of party struggle in the situation of party contention, judges face the threat of impeachment, these realities make the judiciary unable to achieve independence. The reason is that the judiciary has not got enough respect in the society, the judiciary still lacks the power to maintain independent checks and balances, and the impeachment power is abused, which makes it difficult for the judiciary to realize independence in reality. The fourth part discusses the process of judicial independence in practice. To realize the independence of the judiciary, we must overcome the above phenomenon and solve the factors that make it impossible to be independent. By adjudication, the judiciary constantly strives to maintain an independent power of checks and balances, and finally obtains this power in Marbury v. Madison. In the subsequent impeachment case of Chase, not only the power of checks and balances was further consolidated, but also the standard of impeachment judges was carefully and clearly defined, and the respect for the judiciary was enhanced through the "chase impeachment case." The judiciary has the supreme position of the relative super-party school. The main factors hindering the judicial independence were solved, and the judicature finally realized independence in practice, which became a judicial principle and a political principle.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2010
【分類號】：D971.2
本文編號：2253278
[Abstract]:The judicial independence system of the United States is a typical representative of the judicial independence system in the world. It has exerted a profound influence on the democratic system of American society and the way of social development at that time and later, and has become a model and research object that many countries follow today. Different researchers have put forward different views on the establishment and standards of judicial independence in the United States. This paper holds that the judicial independence of the United States has experienced a gradual development from the stipulation of the legal text to the actual establishment, and it was not until 1805 that the impeachment case of Chase was finally established in practice. The main content of this paper is divided into four parts: the first part reviews the development of the U.S. Constitution before the promulgation of the judicial situation. Although this period of judicial succession and development of the British judicial tradition, the establishment of courts, appointed judges, in the judicial independence of the progress, but from the development of the reality of the judiciary, The judiciary of this period did not and could not have independent status. The judiciary has not been given independent status or powers, and other bodies can interfere with or even change the decisions of the judiciary; judges have not been granted independent positions, and there is a phenomenon of judges serving concurrently; the status of judges is also precarious. Its power of appointment and remuneration are in the hands of the British government. In the second part, the author analyzes the legal provisions on judicial independence after the promulgation of the Constitution. The Federal Constitution of 1787 and the Judicial Act of 1789 are applied to the status of judges (mainly the term of office and remuneration), the scope of application of judicial power. The establishment of judicial institutions and the specific operation of the judiciary have made specific and detailed provisions on judicial independence, and through the latter, the Federal Supreme Court and courts at all levels have been established. However, whether the provisions of legal texts can guarantee the independent status of the judiciary still needs to be tested in practice. The third part discusses the dilemma and reasons of judicial independence in practice. Although the Constitution and the Judicial Law of 1789 make a series of provisions on judicial independence, due to historical and practical reasons, judicial independence has not been realized in practice. Judges still have part-time activities, judges have become a tool of party struggle in the situation of party contention, judges face the threat of impeachment, these realities make the judiciary unable to achieve independence. The reason is that the judiciary has not got enough respect in the society, the judiciary still lacks the power to maintain independent checks and balances, and the impeachment power is abused, which makes it difficult for the judiciary to realize independence in reality. The fourth part discusses the process of judicial independence in practice. To realize the independence of the judiciary, we must overcome the above phenomenon and solve the factors that make it impossible to be independent. By adjudication, the judiciary constantly strives to maintain an independent power of checks and balances, and finally obtains this power in Marbury v. Madison. In the subsequent impeachment case of Chase, not only the power of checks and balances was further consolidated, but also the standard of impeachment judges was carefully and clearly defined, and the respect for the judiciary was enhanced through the "chase impeachment case." The judiciary has the supreme position of the relative super-party school. The main factors hindering the judicial independence were solved, and the judicature finally realized independence in practice, which became a judicial principle and a political principle.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2010
【分類號】：D971.2
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前1條
1 聶濰;美國司法獨(dú)立的早期史[D];華東政法大學(xué);2011年
，本文編號：2253278
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