判決中的道德話(huà)語(yǔ)研究
發(fā)布時(shí)間：2018-11-20 11:26
【摘要】：法律自從產(chǎn)生之時(shí)起,便與道德產(chǎn)生了千絲萬(wàn)縷的聯(lián)系。同樣，在作為法律適用的最終產(chǎn)物的判決書(shū)中,道德話(huà)語(yǔ)的身影也是普遍存在著的。從古代的判詞到現(xiàn)今的判決書(shū)，道德話(huà)語(yǔ)在我國(guó)的裁判文書(shū)演變過(guò)程中始終扮演著極為重要的角色。在中國(guó)古代的司法審判中，通德既是定罪量刑的標(biāo)準(zhǔn)，也是法官作出判決的主要的裁判理由。發(fā)展到今天，隨著學(xué)界和實(shí)務(wù)界對(duì)法律理性和邏輯推理的推崇，道德話(huà)語(yǔ)在判決書(shū)中所占的比例已經(jīng)大大降低，但是在司法實(shí)務(wù)中,道德話(huà)語(yǔ)和道德權(quán)衡仍然發(fā)揮著極為重要的作用，只不過(guò)在我國(guó)發(fā)展的不同階段和不同地區(qū),道德話(huà)語(yǔ)在判決中出現(xiàn)的位置和發(fā)揮的作用存在一定的差異，同樣，在英美法系和大陸法系國(guó)家的判決書(shū)中也存在道德話(huà)語(yǔ)的適用情況。 道德話(huà)語(yǔ)作為裁判文書(shū)發(fā)展演變過(guò)程中的重要角色，在當(dāng)今裁判文書(shū)的適用中既具有增強(qiáng)判決的可理解性與可接受性、強(qiáng)化判決書(shū)的社會(huì)效果、彌補(bǔ)實(shí)證法律之不足等積極意義，適用不當(dāng)也可能會(huì)產(chǎn)生影響司法獨(dú)立和司法公正，對(duì)依法裁判原則造成沖擊、造成法官自由裁量權(quán)的擴(kuò)大、影響法律的權(quán)威性和穩(wěn)定性等消極作用。因此我們應(yīng)當(dāng)重視與正視道德話(huà)語(yǔ)在判決書(shū)中的地位與作用，從理論層面對(duì)將通德話(huà)語(yǔ)引入判決書(shū)進(jìn)行分析研究，為道德話(huà)語(yǔ)在裁判文書(shū)中的適用提供充分的理論支持。 本文首先從通德話(huà)語(yǔ)的概念與特征入手，明確了在我國(guó)社會(huì)主義法治背景下的道德話(huà)語(yǔ)的具體含義與特征。在通過(guò)對(duì)司法裁判中道德權(quán)衡的普遍性、道德話(huà)語(yǔ)對(duì)邏輯推理局限性的有效克服以及判決中適用道德話(huà)語(yǔ)的優(yōu)越性的分析，詳細(xì)闡述了判決書(shū)中引入道德話(huà)語(yǔ)的正當(dāng)性。然后通過(guò)對(duì)道德話(huà)語(yǔ)在我國(guó)及國(guó)外判決書(shū)中的適用情況的分析，闡明道德話(huà)語(yǔ)引入判決書(shū)中的現(xiàn)實(shí)基礎(chǔ)，在該部分詳細(xì)分析了我國(guó)判決書(shū)中引入適德話(huà)語(yǔ)的有效途徑——法官后語(yǔ)及其可適用的案件范圍、法官后語(yǔ)的具體內(nèi)容以及法官后語(yǔ)在判決書(shū)中的具體位置。當(dāng)然，道德話(huà)語(yǔ)在判決中的適用是有利也有弊的，在發(fā)揮增強(qiáng)判決的可接受性、強(qiáng)化判決的社會(huì)效果，增強(qiáng)判決書(shū)的說(shuō)理性，，彌補(bǔ)實(shí)證法律之不足的積極作用的同時(shí)，道德話(huà)語(yǔ)也有一定的消極效果，如不合理適用逆德話(huà)語(yǔ)也可能會(huì)導(dǎo)致影響司法獨(dú)立和司法公正、對(duì)依法裁判原則造成沖擊，導(dǎo)致法官自由裁量權(quán)的擴(kuò)大，影響法律的權(quán)威性和穩(wěn)定性。因此，在判決中適用道德話(huà)語(yǔ)的過(guò)程中必須堅(jiān)持尊重判決的合法性、在積累司法經(jīng)驗(yàn)基礎(chǔ)上明確道德話(huà)語(yǔ)在判決中的適用范圍與形式,具有合理性與針對(duì)性地適用道德話(huà)語(yǔ)的原則,充分發(fā)揮其積極作用,避免消極影響,從而使其在我國(guó)社會(huì)主法治建設(shè)中發(fā)揮更加積極和有效的作用。
[Abstract]:Law has been inextricably linked with morality since it came into being. Similarly, as the final product of the application of law, the figure of moral discourse is universal. From the ancient judgment to the present judgment, moral discourse has always played an important role in the evolution of our country's judgment documents. In ancient Chinese judicial trial, Tong de is not only the standard of conviction and sentencing, but also the main reason for the judge to make a judgment. Today, with the promotion of legal rationality and logical reasoning in academic and practical circles, the proportion of moral discourse in judgment has been greatly reduced, but in judicial practice, Moral discourse and moral balance still play an extremely important role, but there are some differences in the position and function of moral discourse in the judgment in different stages and different regions of our country. There is also the application of moral discourse in the judgments of common law and civil law countries. Moral discourse, as an important role in the process of the development and evolution of adjudicative documents, not only enhances the comprehensibility and acceptability of judgment, but also strengthens the social effect of judgment in the application of adjudicative documents. To make up for the deficiency of empirical law and other positive significance, improper application may also affect judicial independence and judicial justice, impact on the principle of adjudication according to law, and cause the expansion of the discretion of judges. Influence the authority and stability of the law and other negative effects. Therefore, we should pay attention to and face up to the position and function of moral discourse in the judgment, analyze and study the introduction of moral discourse into the judgment from the theoretical level, and provide sufficient theoretical support for the application of moral discourse in the judgment document. This paper begins with the concept and characteristics of Tongde discourse, and clarifies the concrete meaning and characteristics of moral discourse under the background of socialist rule of law in our country. Through the analysis of the universality of moral balance in judicial judgment, the effective overcoming of the limitation of moral discourse to logical reasoning and the analysis of the superiority of applying moral discourse in judgment, the legitimacy of introducing moral discourse in judgment is expounded in detail. Then, through the analysis of the application of moral discourse in the judgment of our country and abroad, the paper clarifies the realistic basis of the moral discourse in the judgment. In this part, the author analyzes in detail the effective approach to the introduction of moral discourse in the judgment of our country-the latter language and its applicable scope of cases, the specific content of the latter language and the specific position of the latter language in the judgment. Of course, the application of moral discourse in judgment has both advantages and disadvantages. At the same time, it plays a positive role in enhancing the acceptability of judgment, strengthening the social effect of judgment, enhancing the rationality of judgment, and making up for the deficiency of empirical law. Moral discourse also has some negative effects, such as the unreasonable application of anti-moral discourse may also lead to the impact on judicial independence and judicial justice, the impact on the principle of adjudication according to law, and the expansion of the judge's discretion. Influence the authority and stability of the law. Therefore, in the process of applying moral discourse in judgment, we must insist on respecting the legality of judgment, and make clear the scope and form of moral discourse in judgment on the basis of accumulating judicial experience. Applying the principle of moral discourse rationally and pertinently, giving full play to its positive role and avoiding negative influence, will make it play a more active and effective role in the construction of the dominant rule of law in our society.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2013
【分類(lèi)號(hào)】：D920.4
本文編號(hào)：2344791
[Abstract]:Law has been inextricably linked with morality since it came into being. Similarly, as the final product of the application of law, the figure of moral discourse is universal. From the ancient judgment to the present judgment, moral discourse has always played an important role in the evolution of our country's judgment documents. In ancient Chinese judicial trial, Tong de is not only the standard of conviction and sentencing, but also the main reason for the judge to make a judgment. Today, with the promotion of legal rationality and logical reasoning in academic and practical circles, the proportion of moral discourse in judgment has been greatly reduced, but in judicial practice, Moral discourse and moral balance still play an extremely important role, but there are some differences in the position and function of moral discourse in the judgment in different stages and different regions of our country. There is also the application of moral discourse in the judgments of common law and civil law countries. Moral discourse, as an important role in the process of the development and evolution of adjudicative documents, not only enhances the comprehensibility and acceptability of judgment, but also strengthens the social effect of judgment in the application of adjudicative documents. To make up for the deficiency of empirical law and other positive significance, improper application may also affect judicial independence and judicial justice, impact on the principle of adjudication according to law, and cause the expansion of the discretion of judges. Influence the authority and stability of the law and other negative effects. Therefore, we should pay attention to and face up to the position and function of moral discourse in the judgment, analyze and study the introduction of moral discourse into the judgment from the theoretical level, and provide sufficient theoretical support for the application of moral discourse in the judgment document. This paper begins with the concept and characteristics of Tongde discourse, and clarifies the concrete meaning and characteristics of moral discourse under the background of socialist rule of law in our country. Through the analysis of the universality of moral balance in judicial judgment, the effective overcoming of the limitation of moral discourse to logical reasoning and the analysis of the superiority of applying moral discourse in judgment, the legitimacy of introducing moral discourse in judgment is expounded in detail. Then, through the analysis of the application of moral discourse in the judgment of our country and abroad, the paper clarifies the realistic basis of the moral discourse in the judgment. In this part, the author analyzes in detail the effective approach to the introduction of moral discourse in the judgment of our country-the latter language and its applicable scope of cases, the specific content of the latter language and the specific position of the latter language in the judgment. Of course, the application of moral discourse in judgment has both advantages and disadvantages. At the same time, it plays a positive role in enhancing the acceptability of judgment, strengthening the social effect of judgment, enhancing the rationality of judgment, and making up for the deficiency of empirical law. Moral discourse also has some negative effects, such as the unreasonable application of anti-moral discourse may also lead to the impact on judicial independence and judicial justice, the impact on the principle of adjudication according to law, and the expansion of the judge's discretion. Influence the authority and stability of the law. Therefore, in the process of applying moral discourse in judgment, we must insist on respecting the legality of judgment, and make clear the scope and form of moral discourse in judgment on the basis of accumulating judicial experience. Applying the principle of moral discourse rationally and pertinently, giving full play to its positive role and avoiding negative influence, will make it play a more active and effective role in the construction of the dominant rule of law in our society.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2013
【分類(lèi)號(hào)】：D920.4
【引證文獻(xiàn)】
中國(guó)碩士學(xué)位論文全文數(shù)據(jù)庫(kù) 前1條
1 段美玲;贍養(yǎng)糾紛判決書(shū)中的道德話(huà)語(yǔ)研究[D];蘇州大學(xué);2016年
本文編號(hào)：2344791
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