論司法裁判中的利益衡量
發(fā)布時(shí)間：2019-04-02 04:33
【摘要】： 隨著改革開(kāi)放的深入進(jìn)行,我國(guó)社會(huì)的利益格局也發(fā)生了深刻變化,如何合理調(diào)整利益分配格局、協(xié)調(diào)利益沖突、平衡利益關(guān)系,對(duì)司法裁判活動(dòng)提出了嚴(yán)峻的挑戰(zhàn)。 同時(shí),由于立法所特有的穩(wěn)定性和保守性,法律面對(duì)現(xiàn)實(shí)社會(huì)中的利益沖突時(shí),其調(diào)控功能具有不可避免的局限性,且疑難案件的不斷出現(xiàn)也給法官裁判提出更高要求。利益衡量作為一種法律解釋或適用的方法,在我國(guó)的司法實(shí)踐中得到越來(lái)越多的運(yùn)用,逐漸體現(xiàn)出其在平衡各方利益中的獨(dú)特作用;但是,利益衡量從本質(zhì)上講是一種主觀行為,有其自身的局限性和不足,如何在保證法的安定性和結(jié)論的妥當(dāng)性之間尋求平衡,是利益衡量理論在司法審判中亟需加以解決的問(wèn)題。 為了更好的運(yùn)用利益衡量來(lái)彌補(bǔ)法律調(diào)整的缺漏,最大限度保護(hù)當(dāng)事人的合法利益,實(shí)現(xiàn)司法公平,促進(jìn)社會(huì)和諧,并避免法官的肆意衡量,本文運(yùn)用納、歸比較和案例分析的方法,從理論與實(shí)踐兩個(gè)方面對(duì)利益衡量的必要性和操作原則等問(wèn)題進(jìn)行探討,以期在一定程度上對(duì)司法實(shí)踐有所裨益。 本文共分為四個(gè)部分,著重探討利益衡量的主要適用情形以及運(yùn)作過(guò)程。 第一部分主要對(duì)利益衡量論的發(fā)展脈絡(luò)進(jìn)行系統(tǒng)深入的梳理,闡述該理論的產(chǎn)生背景及其發(fā)展歷程,為深入研究利益衡量思維方法做必要的理論前提準(zhǔn)備。 第二部分分析了利益衡量在司法裁判中運(yùn)用的必要性和意義。 第三部分主要是結(jié)合案例具體說(shuō)明利益衡量理論適用的前提和主要情形。利益衡量主要適用于法意模糊型、法條競(jìng)合型、法律漏洞型、法律荒謬型的疑難案件中。 第四部分重點(diǎn)探討了適用利益衡量時(shí)應(yīng)當(dāng)遵循的幾點(diǎn)原則,并把利益衡量的具體操作過(guò)程分為三個(gè)階段:利益的調(diào)查與分析、利益的權(quán)衡與取舍、結(jié)論的論證與修正。
[Abstract]:With the deepening of reform and opening-up, profound changes have taken place in the pattern of interests in our society. How to adjust the pattern of distribution of interests reasonably, coordinate the conflicts of interests and balance the relationship of interests poses a severe challenge to judicial adjudication activities. At the same time, due to the unique stability and conservatism of legislation, the regulation and control function of law in the face of conflicts of interest in the real society has inevitable limitations, and the continuous emergence of difficult cases also put forward higher requirements for judges and judges. As a method of legal interpretation or application, interest measurement has been used more and more in the judicial practice of our country, which gradually reflects its unique role in balancing the interests of all parties. However, interest measurement is a kind of subjective behavior in essence, has its own limitations and deficiencies, how to find a balance between the stability of the guarantee law and the appropriateness of the conclusion, It is an urgent problem to be solved by the theory of interest measurement in judicial trial. In order to make better use of interest measurement to make up for the lack of legal adjustment, to maximize the protection of the legitimate interests of the parties, to achieve judicial fairness, to promote social harmony, and to avoid the judge's wanton measurement, this paper uses the " The methods of comparison and case analysis discuss the necessity and operational principles of interest measurement from both theoretical and practical aspects in order to be beneficial to judicial practice to a certain extent. This paper is divided into four parts, focusing on the main application of interest measurement and operation process. The first part makes a systematic and in-depth analysis of the development of the theory of interest measurement, expounds the background and development process of the theory, and makes the necessary theoretical premise for the in-depth study of the thinking method of interest measurement. The second part analyzes the necessity and significance of interest measurement in judicial judgment. The third part is mainly to explain the premise and main situation of the application of the theory of interest measurement in combination with the case. The balance of interests is mainly applicable in the difficult cases of ambiguity of law, concurrence of laws, loopholes in law, and absurdity of law. The fourth part mainly discusses several principles that should be followed when applying the interest measurement, and divides the concrete operation process of the interest measurement into three stages: the investigation and analysis of the interest, the trade-off and trade-off of the benefit, the argumentation and amendment of the conclusion.
【學(xué)位授予單位】：上海師范大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類號(hào)】：D920.4
本文編號(hào)：2452244
[Abstract]:With the deepening of reform and opening-up, profound changes have taken place in the pattern of interests in our society. How to adjust the pattern of distribution of interests reasonably, coordinate the conflicts of interests and balance the relationship of interests poses a severe challenge to judicial adjudication activities. At the same time, due to the unique stability and conservatism of legislation, the regulation and control function of law in the face of conflicts of interest in the real society has inevitable limitations, and the continuous emergence of difficult cases also put forward higher requirements for judges and judges. As a method of legal interpretation or application, interest measurement has been used more and more in the judicial practice of our country, which gradually reflects its unique role in balancing the interests of all parties. However, interest measurement is a kind of subjective behavior in essence, has its own limitations and deficiencies, how to find a balance between the stability of the guarantee law and the appropriateness of the conclusion, It is an urgent problem to be solved by the theory of interest measurement in judicial trial. In order to make better use of interest measurement to make up for the lack of legal adjustment, to maximize the protection of the legitimate interests of the parties, to achieve judicial fairness, to promote social harmony, and to avoid the judge's wanton measurement, this paper uses the " The methods of comparison and case analysis discuss the necessity and operational principles of interest measurement from both theoretical and practical aspects in order to be beneficial to judicial practice to a certain extent. This paper is divided into four parts, focusing on the main application of interest measurement and operation process. The first part makes a systematic and in-depth analysis of the development of the theory of interest measurement, expounds the background and development process of the theory, and makes the necessary theoretical premise for the in-depth study of the thinking method of interest measurement. The second part analyzes the necessity and significance of interest measurement in judicial judgment. The third part is mainly to explain the premise and main situation of the application of the theory of interest measurement in combination with the case. The balance of interests is mainly applicable in the difficult cases of ambiguity of law, concurrence of laws, loopholes in law, and absurdity of law. The fourth part mainly discusses several principles that should be followed when applying the interest measurement, and divides the concrete operation process of the interest measurement into three stages: the investigation and analysis of the interest, the trade-off and trade-off of the benefit, the argumentation and amendment of the conclusion.
【學(xué)位授予單位】：上海師范大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類號(hào)】：D920.4
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前2條
1 孔志強(qiáng);論司法過(guò)程中的利益衡量[D];華東政法大學(xué);2011年
2 周瑩青;論利益衡量方法在行政審判中的運(yùn)用[D];華東政法大學(xué);2012年
，本文編號(hào)：2452244
本文鏈接：http://sikaile.net/falvlunwen/fashilw/2452244.html
最近更新
教材專著
