邊沁證據(jù)理論及其啟示
發(fā)布時間：2018-08-08 16:51
【摘要】：杰里米·邊沁(Jeremy Bentham,1748-1832)是英國歷史上偉大的證據(jù)法學(xué)者。每個研究英美證據(jù)理論的學(xué)者都無法完全避開邊沁證據(jù)學(xué)說產(chǎn)生的影響。邊沁關(guān)于證據(jù)法的創(chuàng)作集中在1803-1813年,此時英國司法存在種種弊端、前人證據(jù)研究也存在缺陷,邊沁對此進(jìn)行了批判,并將功利主義價值哲學(xué)引入證據(jù)法,建構(gòu)了摒棄司法弊端的自然裁判模式,還吸收當(dāng)時流行的英國經(jīng)驗(yàn)哲學(xué)的精髓,使其證據(jù)法有堅(jiān)固的價值、司法理論、哲學(xué)三大基礎(chǔ)論。邊沁的證據(jù)理論建構(gòu)在三元基礎(chǔ)論上,對英美證據(jù)理論研究和司法實(shí)踐產(chǎn)生了重大影響。在我國證據(jù)基礎(chǔ)論與證據(jù)論和證明論三部分彼此分裂、證據(jù)立法衡量標(biāo)準(zhǔn)不明、司法證據(jù)評估方法缺失的今天,對邊沁進(jìn)行全面系統(tǒng)的研究有著重大的理論建構(gòu)和立法司法參考意義。第一章講述邊沁理論產(chǎn)生的背景。邊沁所處時代的英國司法狀況存在種種弊端,筆者從法院組織、訴訟制度、法律職業(yè)三個方面入手展現(xiàn)19世紀(jì)初英國司法的面貌。邊沁所處時代是經(jīng)驗(yàn)哲學(xué)風(fēng)靡英國的時候,邊沁證據(jù)哲學(xué)基礎(chǔ)論對經(jīng)驗(yàn)哲學(xué)集大成者洛克的經(jīng)驗(yàn)認(rèn)識論有諸多借鑒,為了讓讀者更全面的了解邊沁哲學(xué)基礎(chǔ)論與洛克經(jīng)驗(yàn)哲學(xué)的密切聯(lián)系,筆者從七個方面全面介紹了洛克的經(jīng)驗(yàn)認(rèn)識論。18世紀(jì)的英國司法實(shí)踐已經(jīng)形成很多碎片化的證據(jù)規(guī)則,18世紀(jì)的證據(jù)法學(xué)者試圖建構(gòu)基礎(chǔ)原則將零散的證據(jù)規(guī)則串聯(lián)起來,吉爾伯特建構(gòu)的最佳證據(jù)規(guī)則影響力最大,也為邊沁提供了一個攻擊的靶子,吉爾伯特的最佳證據(jù)規(guī)則以洛克蓋然性理論為基礎(chǔ),體現(xiàn)在分類體系和證據(jù)排除兩方面。第二章介紹邊沁三大證據(jù)基礎(chǔ)論。邊沁的證據(jù)理論有價值、司法理論、哲學(xué)三大基礎(chǔ)論。邊沁作為功利主義的創(chuàng)始人,將功利主義運(yùn)用到多個領(lǐng)域,筆者梳理了功利主義的證據(jù)領(lǐng)域含義,并將其在證據(jù)領(lǐng)域的適用進(jìn)行了詳細(xì)分析,還論述了蘊(yùn)涵在司法理論中的價值選擇。邊沁稱其司法理論基礎(chǔ)為自然裁判模式,該裁判模式與英國當(dāng)時的裁判模式是相對的,邊沁摒棄了當(dāng)時司法的技術(shù)性弊端創(chuàng)建了自然裁判模式,筆者通過對比自然裁判模式與技術(shù)裁判模式,突顯邊沁在司法理論方面的突破。自然裁判模式作為司法理論基礎(chǔ)為證據(jù)理論提供了制度保障。邊沁證據(jù)哲學(xué)基礎(chǔ)論是虛構(gòu)理論,分為本體論和認(rèn)識論兩部分。虛構(gòu)本體論與洛克的“兩種性質(zhì)論”關(guān)系密切,虛構(gòu)認(rèn)識論與洛克的“二重經(jīng)驗(yàn)論”和“兩種觀念論”也各有相同之處。第三章論述了邊沁證據(jù)理論的具體內(nèi)容:不排除原則和自由證明理論。不排除原則是在真相最大化的價值選擇下得出的關(guān)于證據(jù)采納的理論,主張不排除證據(jù),主張不設(shè)立證據(jù)采納規(guī)則,這與當(dāng)時主流證據(jù)理論的主張相反;自由證明理論主張自由評價證據(jù),不設(shè)立證據(jù)分量規(guī)則,這與吉爾伯特的觀點(diǎn)相反,分歧原因是二者蓋然性論述不同。自由評價證據(jù)賦予法官較大裁量權(quán),邊沁設(shè)立說服程度表和否定推測方法為法官評估證據(jù)提供指引。第四章探討邊沁證據(jù)理論對英美的影響及對我國的啟示。邊沁建立在三元基礎(chǔ)論上的證據(jù)理論對英美證據(jù)理論研究和司法實(shí)踐產(chǎn)生了重大影響。英美司法實(shí)踐中關(guān)于證據(jù)采納和證據(jù)分量的規(guī)定大體沿著邊沁證據(jù)理論主張的方向發(fā)展,些許不同之處是英美證據(jù)理論豐富了邊沁基礎(chǔ)論之后作出的實(shí)踐選擇。邊沁的基礎(chǔ)論和具體證據(jù)理論相互融合形成融貫理論,為英美證據(jù)學(xué)界擴(kuò)展證據(jù)研究范圍提供了方法論。邊沁證據(jù)理論在理論融貫性、證據(jù)立法衡量方法和證據(jù)評估方法等方面對我國證據(jù)理論和立法司法實(shí)踐有重要參考意義。
[Abstract]:Jeremy Bentham (Jeremy Bentham, 1748-1832) is a great evidence jurisprudence in British history. Every scholar who studies the theory of British and American evidence can not completely avoid the influence of Bentham's evidence theory. Bentham's creation of evidence law is concentrated in 1803-1813 years. At this time, there are various drawbacks in the British law, and the research of previous evidence is also lacking. Bentham criticized it, and introduced the utilitarian value philosophy into the evidence law, constructed the natural judgment model of abandoning the judicial malpractice, and absorbed the essence of the popular British empirical philosophy at that time, so that the evidence law had strong value, judicial theory and philosophy three basic basic theories. Bentham's theory of evidence was constructed on the three yuan theory, It has a great influence on the theoretical research and judicial practice of the British and American evidence. In the three parts of the evidence theory and the evidence theory and the proof theory of our country, the standards of the evidence legislation are unidentified and the methods of the evaluation of the judicial evidence are missing today, the comprehensive and systematic study of Bentham has a significant theoretical construction and the legislative and judicial reference significance. The chapter describes the background of Bentham's theory. There are various drawbacks in the British judicial situation in Bentham's era. The author shows the appearance of the British judiciary in the early nineteenth Century from three aspects of the court organization, the litigation system and the legal profession. When Bentham's time is the experience philosophy is popular in Britain, Bentham's basic theory of evidence philosophy is an empirical philosophy. Rock's empirical epistemology has a lot of reference. In order to make readers understand the close relationship between Bentham's philosophy of philosophy and Rock's experience philosophy, the author comprehensively introduces Rock's experience epistemology from seven aspects. The British judicial practice in the.18 century has formed a lot of fragmented evidence rules, and the evidence jurisprudence of eighteenth Century. The best evidence rule constructed by Gilbert has the greatest influence, and it also provides a target for Bentham to attack. The best evidence rule of Gilbert is based on the theory of Rock's probability, which is embodied in the two aspects of the classification system and the exclusion of evidence. The second chapter introduces Bian Qinsan. The theory of large evidence. Bentham's theory of evidence has value, judicial theory and philosophy three basic theories. Bentham, as the founder of utilitarianism, applies utilitarianism to many fields. The author combs the meaning of utilitarianism in the field of evidence and analyzes the application of it in the field of evidence in detail. It also discusses the implication in the judicial theory. The basis of Bentham's judicial theory is the natural referee model, which is relative to the British referee model at that time. Bentham abandoned the technical malpractice of the judiciary to create the natural referee model. The author highlights Bentham's breakthrough in judicial theory by comparing the model of natural referee and the pattern of technical judgment. The model of natural referee, as the basis of judicial theory, provides institutional guarantee for the theory of evidence. Bentham's basic theory of evidence philosophy is a fictitious theory, which is divided into two parts of ontology and epistemology. The fictitious ontology is closely related to Rock's "two theories of nature", and the fictitious epistemology and Rock's "double empiricism" and "two conceptions" are also different. The third chapter discusses the specific content of Bentham's evidence theory: the principle of non exclusion and the theory of free proof. The principle of no exclusion is the theory of evidence adoption under the value choice of the truth maximization. It advocates that the evidence is not excluded and the evidence adoption rules are not set up, which is contrary to the opinion of the mainstream evidence theory at that time. The free proof theory advocates the free evaluation of evidence and does not set up the rule of evidence component. Contrary to Gilbert's view, the reason is the difference between the two parties. The free evaluation evidence gives the judge a greater discretion, and Bentham establishes the degree of persuasion and the method of negative speculation to provide guidance for the judge to evaluate the evidence. The fourth chapter discusses Bentham The influence of evidence theory on Britain and the United States and Its Enlightenment to our country. The theory of evidence established by Bentham on the three basic theory of evidence has a great influence on the research and judicial practice of the Anglo American Evidence Theory and the judicial practice. The provisions of the evidence adoption and the evidence component in the British and American judicial practice develop along the direction of the theory of Bentham's evidence theory, with some differences. It is a practical choice after the Anglo American evidence theory enriches Bentham's basic theory. Bentham's basic theory and the concrete evidence theory are fused to form the theory of coherence, which provides a methodology for the extension of the scope of evidence research in the Anglo American evidence field. The theory of Bentham's evidence theory is consistent in theory, the method of evidence legislation and the method of evidence evaluation. It has important reference significance for our country's evidence theory and legislation and judicial practice.
【學(xué)位授予單位】：中國政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D925
本文編號：2172413
[Abstract]:Jeremy Bentham (Jeremy Bentham, 1748-1832) is a great evidence jurisprudence in British history. Every scholar who studies the theory of British and American evidence can not completely avoid the influence of Bentham's evidence theory. Bentham's creation of evidence law is concentrated in 1803-1813 years. At this time, there are various drawbacks in the British law, and the research of previous evidence is also lacking. Bentham criticized it, and introduced the utilitarian value philosophy into the evidence law, constructed the natural judgment model of abandoning the judicial malpractice, and absorbed the essence of the popular British empirical philosophy at that time, so that the evidence law had strong value, judicial theory and philosophy three basic basic theories. Bentham's theory of evidence was constructed on the three yuan theory, It has a great influence on the theoretical research and judicial practice of the British and American evidence. In the three parts of the evidence theory and the evidence theory and the proof theory of our country, the standards of the evidence legislation are unidentified and the methods of the evaluation of the judicial evidence are missing today, the comprehensive and systematic study of Bentham has a significant theoretical construction and the legislative and judicial reference significance. The chapter describes the background of Bentham's theory. There are various drawbacks in the British judicial situation in Bentham's era. The author shows the appearance of the British judiciary in the early nineteenth Century from three aspects of the court organization, the litigation system and the legal profession. When Bentham's time is the experience philosophy is popular in Britain, Bentham's basic theory of evidence philosophy is an empirical philosophy. Rock's empirical epistemology has a lot of reference. In order to make readers understand the close relationship between Bentham's philosophy of philosophy and Rock's experience philosophy, the author comprehensively introduces Rock's experience epistemology from seven aspects. The British judicial practice in the.18 century has formed a lot of fragmented evidence rules, and the evidence jurisprudence of eighteenth Century. The best evidence rule constructed by Gilbert has the greatest influence, and it also provides a target for Bentham to attack. The best evidence rule of Gilbert is based on the theory of Rock's probability, which is embodied in the two aspects of the classification system and the exclusion of evidence. The second chapter introduces Bian Qinsan. The theory of large evidence. Bentham's theory of evidence has value, judicial theory and philosophy three basic theories. Bentham, as the founder of utilitarianism, applies utilitarianism to many fields. The author combs the meaning of utilitarianism in the field of evidence and analyzes the application of it in the field of evidence in detail. It also discusses the implication in the judicial theory. The basis of Bentham's judicial theory is the natural referee model, which is relative to the British referee model at that time. Bentham abandoned the technical malpractice of the judiciary to create the natural referee model. The author highlights Bentham's breakthrough in judicial theory by comparing the model of natural referee and the pattern of technical judgment. The model of natural referee, as the basis of judicial theory, provides institutional guarantee for the theory of evidence. Bentham's basic theory of evidence philosophy is a fictitious theory, which is divided into two parts of ontology and epistemology. The fictitious ontology is closely related to Rock's "two theories of nature", and the fictitious epistemology and Rock's "double empiricism" and "two conceptions" are also different. The third chapter discusses the specific content of Bentham's evidence theory: the principle of non exclusion and the theory of free proof. The principle of no exclusion is the theory of evidence adoption under the value choice of the truth maximization. It advocates that the evidence is not excluded and the evidence adoption rules are not set up, which is contrary to the opinion of the mainstream evidence theory at that time. The free proof theory advocates the free evaluation of evidence and does not set up the rule of evidence component. Contrary to Gilbert's view, the reason is the difference between the two parties. The free evaluation evidence gives the judge a greater discretion, and Bentham establishes the degree of persuasion and the method of negative speculation to provide guidance for the judge to evaluate the evidence. The fourth chapter discusses Bentham The influence of evidence theory on Britain and the United States and Its Enlightenment to our country. The theory of evidence established by Bentham on the three basic theory of evidence has a great influence on the research and judicial practice of the Anglo American Evidence Theory and the judicial practice. The provisions of the evidence adoption and the evidence component in the British and American judicial practice develop along the direction of the theory of Bentham's evidence theory, with some differences. It is a practical choice after the Anglo American evidence theory enriches Bentham's basic theory. Bentham's basic theory and the concrete evidence theory are fused to form the theory of coherence, which provides a methodology for the extension of the scope of evidence research in the Anglo American evidence field. The theory of Bentham's evidence theory is consistent in theory, the method of evidence legislation and the method of evidence evaluation. It has important reference significance for our country's evidence theory and legislation and judicial practice.
【學(xué)位授予單位】：中國政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D925
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