后果主義視角下的法律論證理論
發(fā)布時(shí)間：2018-11-12 17:16
【摘要】： 后果主義法律論證理論是法律論證以及法律邏輯學(xué)中一個(gè)新興的研究領(lǐng)域。后果主義法律論證理論用一種向前看的眼光,根據(jù)判決的可能后果,深入理解一個(gè)案件涉及的諸多具體利益,并要求法官在可能導(dǎo)致的多個(gè)競爭利益中進(jìn)行選擇,根據(jù)不同選擇帶來的不同后果進(jìn)行價(jià)值評(píng)價(jià),最終作出一個(gè)合乎情理的決定。目的在于幫助法官面對(duì)疑難案件時(shí),應(yīng)該立足社會(huì)現(xiàn)實(shí)的需要,通過考慮作出某一選擇所導(dǎo)致的各種可能后果,來考量選擇是否具有正當(dāng)性,從而實(shí)現(xiàn)司法為民這一社會(huì)主義法治理論的基本理念。實(shí)質(zhì)上后果主義法律論證理論從判決可能導(dǎo)致的各種后果出發(fā),為法官提供了一種實(shí)用裁判方法,從一個(gè)全新的角度,探尋更加合理,更具實(shí)踐意義的理論進(jìn)路,以期滿足法官在現(xiàn)實(shí)審判中的需求。 第一部分從哲學(xué)、法律、邏輯及社會(huì)背景等四個(gè)方面探討法律論證理論興起的淵源。首先,實(shí)踐哲學(xué)的興起促使哲學(xué)家們更加關(guān)注人類行為正當(dāng)性的思考,在這種背景下,法律的道德性重新引起人們的思考,實(shí)踐理性也進(jìn)入法學(xué)研究的視野;其次,概念法學(xué)的日漸式微,法官獲得了一定的自由裁量權(quán),這樣法官就必須論證判決理由的正當(dāng)性與可接受性;再次非形式邏輯的興起為法律論證理論提供了理論支撐;最后,隨著社會(huì)公眾權(quán)利意識(shí)日益加強(qiáng),對(duì)司法也提出了更高的要求。司法判決能夠被雙方乃至社會(huì)公眾所接受,就必須進(jìn)行充分的論證。 第二部分通過考察不同學(xué)者的后果法律論證理論的總結(jié),界定了后果主義法律論證的涵義�？ǘ嘧魪姆ㄉ鐣�(huì)學(xué)的角度,強(qiáng)調(diào)以價(jià)值判斷衡量不同利益可能導(dǎo)致的裁判后果為指導(dǎo)來裁決案件。波斯納認(rèn)為法官應(yīng)該立足于社會(huì)的需要,對(duì)案件背后隱藏的各種具體利益進(jìn)行認(rèn)真分析、調(diào)查和評(píng)估,并最終做出選擇。麥考密克認(rèn)為法官在裁判案件時(shí)尤其對(duì)于疑難案件的裁決,判決理由的形成,一般取決于所應(yīng)該適用的法律規(guī)則、原則對(duì)社會(huì)可能導(dǎo)致的各種后果所進(jìn)行的選擇。在不同的歷史時(shí)期或不同的法官眼中,同一案件事實(shí),其判決理由也可能不盡相同,有時(shí)甚至可能得出截然相反的決定。本文通過對(duì)比各種不同后果主義法律論證理論,進(jìn)而闡述了后果主義法律論證就是在法律秩序范圍內(nèi),法官判決案件應(yīng)該考慮適用某一法律規(guī)范或法律原則,對(duì)各種相關(guān)社會(huì)利益可能產(chǎn)生的潛在影響,以及可能引起的各種可能后果,并在對(duì)立的后果中進(jìn)行考量,以為依據(jù)推出正當(dāng)理由的論證理論。在此基礎(chǔ)上,通過對(duì)后果的預(yù)測和分類進(jìn)行分析和歸納,認(rèn)為后果主義論證所趨向的后果,并非是司法裁決的任何后果,而是法律語境和法律職業(yè)思維下的后果,即要依據(jù)法律目的來預(yù)測可能產(chǎn)生的后果,而不能任意選擇。而且可欲后果可以分為法律后果與社會(huì)后果、長期后果與短期后果、政治后果與法律后果等。最后,本文認(rèn)為可欲后果的多樣性,必然要求一定的標(biāo)準(zhǔn)對(duì)預(yù)測后果進(jìn)行評(píng)價(jià),也就是在各種利益(如公民自由與國家安全,個(gè)人隱私與知情權(quán))之間達(dá)成一種平衡。法律原則、利益衡量、情理都可以作為對(duì)后果進(jìn)行評(píng)價(jià)的標(biāo)準(zhǔn),尤其是情理之于國人,更具有重要的實(shí)踐價(jià)值。 第三部分,對(duì)后果主義法律論證理論進(jìn)行了反思和批判。如果沒有其它相關(guān)制度的約束,后果主義法律論證必然會(huì)導(dǎo)致司法部門屈服于行政機(jī)關(guān)的影響和壓力,導(dǎo)致司法判決行政化傾向。后果主義論證理論在現(xiàn)實(shí)司法實(shí)踐也缺乏對(duì)法官自由裁量權(quán)的有效約束,很可能最終走向法律虛無主義的深淵。鑒此,本文的結(jié)論是后果主義論證理論還應(yīng)該遵循正當(dāng)法律程序以及說明理由制度的約束。法官對(duì)不同后果的取舍要說明理由,要實(shí)現(xiàn)陽光下判決,杜絕暗箱操作,讓當(dāng)事人輸?shù)拿靼?贏的清楚。后果主義法律論證理論只有得到正當(dāng)法律程序和說明理由制度的補(bǔ)充,才能真正做出社會(huì)滿意的判決,實(shí)現(xiàn)司法維護(hù)社會(huì)正義和司法為民的目的。 本文選題的實(shí)踐意義在于:(1)滿足法官裁決案件的實(shí)際需求,即在疑難案件裁決中,借助后果主義論證法官可以盡快確立案件適用的法律規(guī)范,并以此為支點(diǎn)形成正當(dāng)判決理由;(2)為判決理由公開制度作出有益的探索,以真正實(shí)現(xiàn)陽光下的司法正義。 本文的研究重點(diǎn)在于后果主義法律論證理論的構(gòu)建,并結(jié)合案例分析方法,論證了該理論在司法實(shí)踐中的可行性與有益性。其創(chuàng)新點(diǎn)在于,通過對(duì)后果主義法律論證理論的界定,并且對(duì)后果主義法律論證理論進(jìn)行了批判和反思,提出只有與正當(dāng)程序和說明理由制度相結(jié)合的后果主義論證理論,才是適合我國司法實(shí)踐的。
[Abstract]:The theory of the legal argument of the result doctrine is the legal argument and a new research field in the legal logic study. The theory of the result-oriented law is a forward-looking, based on the possible consequences of the sentence, in-depth understanding of the specific interests involved in a case, and requests the judge to choose among a number of competing interests that may result, The value evaluation is carried out according to the different consequences of the different selection, and a reasonable decision is finally made. The purpose of this paper is to help the judge, in the face of difficult cases, based on the needs of the social reality, to consider whether the choice is justified by considering the various possible consequences of a certain choice, so as to realize the basic idea of the theory of the socialist rule of law for the people in justice for the people. On the basis of the consequences of the possible consequences of the judgment, a practical method of referees is provided for the judge, in order to meet the needs of the judge in the real trial. The first part discusses the rise of the theory of legal reasoning from four aspects, such as philosophy, law, logic and social background. First, the rise of the practice philosophy has led the philosophers to pay more attention to the thinking of the legitimacy of the human behavior. In this context, the moral character of the law recauses the thought of the people, and the practice reason also enters the field of view of the legal research; secondly, the day of the concept of law The judge has given a certain discretion, so the judge must demonstrate the legitimacy and acceptability of the judgment reason; the rise of the non-formal logic provides the theoretical support for the theory of the legal reasoning; and finally, with the public's rights awareness day The strengthening of the administration of justice has also raised a higher level of justice. The judicial decision can be accepted by both parties and the public and must be fully The second part, through the investigation of the conclusion of the theory of the legal reasoning of the consequences of different scholars, defines the consequences. The meaning of the legal argument. Cardoso, from the perspective of the law sociology, emphasizes the determination of the possible consequences of different interests in terms of value judgment. Guided by the case, Posner is of the view that the judge should be based on the needs of the community and that the specific interests hidden behind the case are carefully analysed, investigated and evaluated, and finally make a choice. McCormick is of the opinion that, in the case of a decision, the judge's decision on the case of a difficult case, the formation of the grounds for judgment, will generally depend on the legal rules applicable, the principles of which the principle is likely to lead to the society The choice of the fruit. In different historical periods or in different judges, the facts of the same case may be different and sometimes even possible. In this paper, by comparing various legal arguments of different consequences, the paper expounds that the legal argument of the result is that in the scope of the law order, the case of the judge's judgment should consider the application of a certain legal norm or the legal principle, and it may be possible for various relevant social interests The potential effects, as well as the various possible consequences that may arise, and take into consideration in the opposite consequence, in order to justify the introduction of justice. On the basis of this, through the analysis and conclusion of the prediction and classification of the consequences, it is concluded that the consequence of the trend of the consequence-based argument is not any consequence of the judicial decision, but it is the consequence of the legal context and the legal professional thought, that is, it is to be predicted according to the legal purpose. the possible consequences, and can be divided into the legal consequences and the social consequences, the long-term consequences and the short-term consequences, and the political In the end, the author thinks that the diversity of the result can be evaluated by some standard, and it is in various interests (such as civil liberties and national security, personal privacy and right to know). A balance is reached. The principles of the law, the measure of interest, and the justification can be used as a standard for the evaluation of the consequences, in particular in the country and more The important practical value. The third part, the legal theory of the consequences. If there is no other relevant system, the legal argument of the result will lead to the judicial department's submission to the influence and pressure of the administrative organ. It can lead to the administrative tendency of the judicial decision. The result-based argument theory lacks the effective restraint of the discretion of the judge in the practice of judicial practice, and it is likely to end up The conclusion of this paper is that the theory of the proof of the consequences should be followed by the proper legal procedure. and explain the restraint of the reason system. The judge should explain the reasons for the trade-off of the different consequences, to make the judgment under the sun, to put an end to the operation of the dark box, and to let the judge The understanding and winning of the people's loss is clear. The theory of the legal proof of the consequences can only be supplemented by the proper legal procedure and the explanation reason system, so that the judgment of the social satisfaction can be truly made, and the judicial maintenance society can be realized The purpose of justice and justice for the people is to: (1) to satisfy the actual demand of the judge's decision case, that is, in the case of difficult case, the judge can establish the applicable legal norm of the case as soon as possible by means of the result-based argument and (2) make a useful exploration for the public system of the judgment. The focus of this paper is the construction of the theory of the legal argument of the consequence, and the case analysis method and the case analysis method. It is the feasibility and the benefit of the theory in the judicial practice. The innovation point is that through the definition of the theory of the legal argument of the result, and the theory of the legal argument of the result is criticized and reflected, it is suggested that only after the combination of the due process and the explanation reason system,
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類號(hào)】：D90-051
本文編號(hào)：2327708
[Abstract]:The theory of the legal argument of the result doctrine is the legal argument and a new research field in the legal logic study. The theory of the result-oriented law is a forward-looking, based on the possible consequences of the sentence, in-depth understanding of the specific interests involved in a case, and requests the judge to choose among a number of competing interests that may result, The value evaluation is carried out according to the different consequences of the different selection, and a reasonable decision is finally made. The purpose of this paper is to help the judge, in the face of difficult cases, based on the needs of the social reality, to consider whether the choice is justified by considering the various possible consequences of a certain choice, so as to realize the basic idea of the theory of the socialist rule of law for the people in justice for the people. On the basis of the consequences of the possible consequences of the judgment, a practical method of referees is provided for the judge, in order to meet the needs of the judge in the real trial. The first part discusses the rise of the theory of legal reasoning from four aspects, such as philosophy, law, logic and social background. First, the rise of the practice philosophy has led the philosophers to pay more attention to the thinking of the legitimacy of the human behavior. In this context, the moral character of the law recauses the thought of the people, and the practice reason also enters the field of view of the legal research; secondly, the day of the concept of law The judge has given a certain discretion, so the judge must demonstrate the legitimacy and acceptability of the judgment reason; the rise of the non-formal logic provides the theoretical support for the theory of the legal reasoning; and finally, with the public's rights awareness day The strengthening of the administration of justice has also raised a higher level of justice. The judicial decision can be accepted by both parties and the public and must be fully The second part, through the investigation of the conclusion of the theory of the legal reasoning of the consequences of different scholars, defines the consequences. The meaning of the legal argument. Cardoso, from the perspective of the law sociology, emphasizes the determination of the possible consequences of different interests in terms of value judgment. Guided by the case, Posner is of the view that the judge should be based on the needs of the community and that the specific interests hidden behind the case are carefully analysed, investigated and evaluated, and finally make a choice. McCormick is of the opinion that, in the case of a decision, the judge's decision on the case of a difficult case, the formation of the grounds for judgment, will generally depend on the legal rules applicable, the principles of which the principle is likely to lead to the society The choice of the fruit. In different historical periods or in different judges, the facts of the same case may be different and sometimes even possible. In this paper, by comparing various legal arguments of different consequences, the paper expounds that the legal argument of the result is that in the scope of the law order, the case of the judge's judgment should consider the application of a certain legal norm or the legal principle, and it may be possible for various relevant social interests The potential effects, as well as the various possible consequences that may arise, and take into consideration in the opposite consequence, in order to justify the introduction of justice. On the basis of this, through the analysis and conclusion of the prediction and classification of the consequences, it is concluded that the consequence of the trend of the consequence-based argument is not any consequence of the judicial decision, but it is the consequence of the legal context and the legal professional thought, that is, it is to be predicted according to the legal purpose. the possible consequences, and can be divided into the legal consequences and the social consequences, the long-term consequences and the short-term consequences, and the political In the end, the author thinks that the diversity of the result can be evaluated by some standard, and it is in various interests (such as civil liberties and national security, personal privacy and right to know). A balance is reached. The principles of the law, the measure of interest, and the justification can be used as a standard for the evaluation of the consequences, in particular in the country and more The important practical value. The third part, the legal theory of the consequences. If there is no other relevant system, the legal argument of the result will lead to the judicial department's submission to the influence and pressure of the administrative organ. It can lead to the administrative tendency of the judicial decision. The result-based argument theory lacks the effective restraint of the discretion of the judge in the practice of judicial practice, and it is likely to end up The conclusion of this paper is that the theory of the proof of the consequences should be followed by the proper legal procedure. and explain the restraint of the reason system. The judge should explain the reasons for the trade-off of the different consequences, to make the judgment under the sun, to put an end to the operation of the dark box, and to let the judge The understanding and winning of the people's loss is clear. The theory of the legal proof of the consequences can only be supplemented by the proper legal procedure and the explanation reason system, so that the judgment of the social satisfaction can be truly made, and the judicial maintenance society can be realized The purpose of justice and justice for the people is to: (1) to satisfy the actual demand of the judge's decision case, that is, in the case of difficult case, the judge can establish the applicable legal norm of the case as soon as possible by means of the result-based argument and (2) make a useful exploration for the public system of the judgment. The focus of this paper is the construction of the theory of the legal argument of the consequence, and the case analysis method and the case analysis method. It is the feasibility and the benefit of the theory in the judicial practice. The innovation point is that through the definition of the theory of the legal argument of the result, and the theory of the legal argument of the result is criticized and reflected, it is suggested that only after the combination of the due process and the explanation reason system,
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類號(hào)】：D90-051
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