疑難案件中法律確定性之證成
發(fā)布時(shí)間：2019-06-18 23:20
【摘要】： 法律有無確定性之爭由來已久,特別在二十世紀(jì)日益炙熱化,原因就在于自人類進(jìn)入二十世紀(jì)這個(gè)發(fā)展的快車道,無論是對(duì)于民眾還是政府,無論是在經(jīng)濟(jì)、政治還是法律領(lǐng)域,急劇的社會(huì)變革和轉(zhuǎn)型都帶來了許多難以準(zhǔn)確估量的沖擊性影響。人類社會(huì)自此步入價(jià)值多元化,權(quán)威多元化的時(shí)代,處于一種沒有終極價(jià)值關(guān)懷的時(shí)代。在這種背景之下,二十世紀(jì)以前所樹立的法典化形象在史無前例的疑難案件面前,顯得束手無策,毫無招架之力,現(xiàn)實(shí)主義法學(xué)借此興風(fēng)作浪,致使法律的威信蕩然無存,使法律陷入了整體性的危機(jī)之中。只有解決和論證法律在疑難案件中同樣能夠保持法律的確定性,才能重新在人們心中樹立起法律的權(quán)威性信念,維護(hù)法律的整體性以及整個(gè)現(xiàn)代化事業(yè),因?yàn)楝F(xiàn)代社會(huì)就是法制社會(huì),就是建立在法律的權(quán)威性基礎(chǔ)之上的。特別是在當(dāng)代,維護(hù)法律在疑難案件中仍然具有確定性的信念既是必要的,也是緊迫的,當(dāng)然也是可能的。更為重要的是:這一論題對(duì)于當(dāng)今的中國同樣具有重大的現(xiàn)實(shí)意義。因?yàn)楫?dāng)今的中國仍然在法制現(xiàn)代化的征程中揚(yáng)帆遠(yuǎn)航,但是隨著四川瀘州的“遺贈(zèng)案”,南京的“彭宇案”,以及廣州的“許霆案”等一系列疑難案件的出現(xiàn),使得國人特別是普通民眾對(duì)于法律在疑難案件仍將具有確定性的信念打上了問號(hào),對(duì)于法律的可預(yù)見性表示了懷疑。所以,本文選擇了這一論題進(jìn)行研究,目的在于使人們相信即使在當(dāng)今層出不窮的疑難案件中法律仍將具有確定性的高尚品格是不會(huì)改變的,法律具有確定性的信念只應(yīng)該加強(qiáng)而不是被削弱。 本文為完成論證的目的,本文打算分四章予以詳細(xì)論述:第一章是前言部分,內(nèi)容為論題的提出,國內(nèi)外研究現(xiàn)狀,研究方法,研究基礎(chǔ),研究目標(biāo);第二章是論述疑難案件、法律確定性及其相關(guān)概念的界定;第三章是問題的提出:疑難案件中法律確定性之爭論,凸顯這一問題在法學(xué)理論中的重要地位;第四章是問題的展開與分析:疑難案件中法律確定性之反思;第五章是問題的解決:疑難案件中法律確定性之證成;最后是本文的結(jié)語。
[Abstract]:The dispute over the certainty of law has been going on for a long time, especially in the 20th century, which is due to the fact that the rapid development of human beings in the 20th century has brought many inestimable impact on the people and the government, whether in the economic, political or legal fields. Since then, human society has entered the era of value diversification and authority diversification, in an era without ultimate value care. Under this background, the codified image established before the 20th century appears helpless and powerless in the face of unprecedented difficult cases. Realistic law makes waves through this, which makes the authority of the law disappear and the law falls into a holistic crisis. Only by solving and demonstrating that the law can also maintain the certainty of the law in difficult cases, can we re-establish the authoritative belief of the law in people's hearts, safeguard the integrity of the law and the whole modernization cause, because the modern society is the legal society, which is based on the authority of the law. Especially in the contemporary era, it is necessary, urgent and possible to maintain the belief that the law still has certainty in difficult cases. More importantly, this topic is also of great practical significance to China today. Because today's China is still sailing long distances in the process of legal modernization, but with the emergence of a series of difficult cases, such as the "legacy case" in Luzhou, Sichuan, the "Peng Yu case" in Nanjing, and the "Xu Ting case" in Guangzhou, the Chinese people, especially the ordinary people, have put a question mark on the belief that the law will still have certainty in difficult cases, and have expressed doubts about the predictability of the law. Therefore, this paper chooses this topic to study, in order to make people believe that even in the endless emergence of difficult cases, the noble character of the law will still have certainty will not change, and the belief that the law has certainty should only be strengthened rather than weakened. In order to complete the purpose of argumentation, this paper intends to discuss in detail in four chapters: the first chapter is the preface, the content is the proposition of the topic, the research status at home and abroad, the research method, the research basis, the research goal, the second chapter is to discuss the difficult case, the legal certainty and the related concept definition; The third chapter is the proposal of the problem: the debate of legal certainty in difficult cases, which highlights the important position of this problem in the theory of law; the fourth chapter is the development and analysis of the problem: the reflection of legal certainty in difficult cases; the fifth chapter is the solution of the problem: the proof of legal certainty in difficult cases; and finally, the conclusion of this paper.
【學(xué)位授予單位】：華南理工大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類號(hào)】：D90
本文編號(hào)：2501873
[Abstract]:The dispute over the certainty of law has been going on for a long time, especially in the 20th century, which is due to the fact that the rapid development of human beings in the 20th century has brought many inestimable impact on the people and the government, whether in the economic, political or legal fields. Since then, human society has entered the era of value diversification and authority diversification, in an era without ultimate value care. Under this background, the codified image established before the 20th century appears helpless and powerless in the face of unprecedented difficult cases. Realistic law makes waves through this, which makes the authority of the law disappear and the law falls into a holistic crisis. Only by solving and demonstrating that the law can also maintain the certainty of the law in difficult cases, can we re-establish the authoritative belief of the law in people's hearts, safeguard the integrity of the law and the whole modernization cause, because the modern society is the legal society, which is based on the authority of the law. Especially in the contemporary era, it is necessary, urgent and possible to maintain the belief that the law still has certainty in difficult cases. More importantly, this topic is also of great practical significance to China today. Because today's China is still sailing long distances in the process of legal modernization, but with the emergence of a series of difficult cases, such as the "legacy case" in Luzhou, Sichuan, the "Peng Yu case" in Nanjing, and the "Xu Ting case" in Guangzhou, the Chinese people, especially the ordinary people, have put a question mark on the belief that the law will still have certainty in difficult cases, and have expressed doubts about the predictability of the law. Therefore, this paper chooses this topic to study, in order to make people believe that even in the endless emergence of difficult cases, the noble character of the law will still have certainty will not change, and the belief that the law has certainty should only be strengthened rather than weakened. In order to complete the purpose of argumentation, this paper intends to discuss in detail in four chapters: the first chapter is the preface, the content is the proposition of the topic, the research status at home and abroad, the research method, the research basis, the research goal, the second chapter is to discuss the difficult case, the legal certainty and the related concept definition; The third chapter is the proposal of the problem: the debate of legal certainty in difficult cases, which highlights the important position of this problem in the theory of law; the fourth chapter is the development and analysis of the problem: the reflection of legal certainty in difficult cases; the fifth chapter is the solution of the problem: the proof of legal certainty in difficult cases; and finally, the conclusion of this paper.
【學(xué)位授予單位】：華南理工大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類號(hào)】：D90
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前1條
1 趙飛;論法律推理的不確定性及其克服[D];廣東商學(xué)院;2012年
，本文編號(hào)：2501873
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