南京國民政府時(shí)期的自由心證制度
發(fā)布時(shí)間：2018-09-08 12:39
【摘要】：本文以南京國民政府時(shí)期的自由心證制度為研究對(duì)象，重點(diǎn)分析了自由心證制度在當(dāng)時(shí)法律制度和司法實(shí)踐中的運(yùn)用，同時(shí)對(duì)該制度在當(dāng)時(shí)的利弊作了探討。全文一共分為四大部分，下面對(duì)各部分做一個(gè)簡要介紹： 第一部分，自由心證制度的概括。本文在引言中提出，目前學(xué)術(shù)界對(duì)南京國民政府時(shí)期的證據(jù)制度存在諸多爭論，主要分歧是這個(gè)時(shí)期實(shí)行的是自由心證制度還是法定證據(jù)制度。要想得出一個(gè)正確結(jié)論，首先就要弄清兩種制度各自的特點(diǎn)和區(qū)別，故第一部分對(duì)各種證據(jù)制度生存的歷史環(huán)境做了簡要分析，，也就是從歷史的角度加以佐證說明，然后以比較的方式重點(diǎn)說明了自由心證制度的特點(diǎn)，從理論上為下文的論述做了鋪墊。 第二部分，南京國民政府時(shí)期自由心證制度的法律解析。這部分是從法律制度的角度來探究當(dāng)時(shí)的證據(jù)制度。首先對(duì)自由心證制度的移植和演變做了論述，然后以當(dāng)時(shí)最具典型性的民國二十四年的《民事訴訟法》和《刑事訴訟法》為研究對(duì)象，揭示了當(dāng)時(shí)證據(jù)制度之精要：1、證據(jù)之證明力由法院判斷之。2、證據(jù)均由法官逐一調(diào)查。3、證據(jù)調(diào)查完畢后應(yīng)就事實(shí)及法律進(jìn)行言詞辯論。4、判決書中應(yīng)載明判決理由——即心證過程。最后對(duì)自由心證制度在戰(zhàn)時(shí)法制中的變通做了分析。 第三部分，抗戰(zhàn)大后方司法審判實(shí)踐中的自由心證。這部分以南京國民政府的典型時(shí)期的司法審判為研究對(duì)象，以經(jīng)驗(yàn)法則為切入點(diǎn)，從普通案件和特別刑事案件的審理進(jìn)行分析，個(gè)案的審判均符合自由心證制度的特點(diǎn)，從而得出當(dāng)時(shí)在司法審判實(shí)踐中依然用的是自由心證制度。 第四部分，自由心證制度評(píng)析。該部分從積極的方面說明自由心證制度在當(dāng)時(shí)的進(jìn)步性，以及對(duì)當(dāng)時(shí)社會(huì)產(chǎn)生的有利影響。同時(shí)從司法審判中暴露出來的問題，來說明該制度在當(dāng)時(shí)仍然存在缺陷。 最后在本文結(jié)語處，對(duì)全文一直未涉及的行政訴訟問題進(jìn)行了說明，之所以沒有研究，一是因?yàn)楫?dāng)時(shí)的行政訴訟制度不完善，對(duì)證據(jù)制度沒有做明確說明，二是筆者手中關(guān)于當(dāng)時(shí)行政訴訟的案例較少，無法全面考察。但總體來看，當(dāng)時(shí)行政訴訟證據(jù)制度也有自由心證制度的影子。
[Abstract]:This paper focuses on the analysis of the application of the free evidence system in the legal system and judicial practice of the Nanjing National Government at that time, and probes into the advantages and disadvantages of the system at that time. The full text is divided into four parts, the following is a brief introduction to each part: the first part, the summary of the free evidence system. In the introduction, this paper points out that there are many controversies about the evidence system of the Nanjing National Government at present, and the main difference is whether the free evidence system or the legal evidence system is practiced in this period. In order to reach a correct conclusion, we must first make clear the characteristics and differences between the two systems, so the first part makes a brief analysis of the historical environment of the existence of various evidential systems, that is, from the historical point of view, Then, the characteristics of the free evidence system are explained in a comparative way, which paves the way for the following discussion theoretically. The second part is the legal analysis of the free evidence system in the Nanjing National Government. This part is from the point of view of the legal system to explore the system of evidence at that time. First of all, it discusses the transplantation and evolution of the system of free heart evidence, and then takes the Civil procedure Law and the Criminal procedure Law, which were the most typical at that time, as the research objects. It reveals the essence of the evidence system at that time: 1, the power of proof shall be judged by the court. The evidence shall be investigated by the judge one by one. After the investigation of the evidence, there should be a verbal debate on the facts and the law. The judgment should state the reasons for the judgment. -that is, the process of heart syndrome. At last, the author analyzes the flexibility of the free evidence system in the wartime legal system. The third part, the free psychological evidence in the practice of judicial trial in the rear area of the War of Resistance against Japan. This part takes the judicial trial of the typical period of Nanjing National Government as the research object, takes the rule of experience as the breakthrough point, carries on the analysis from the common case and the special criminal case trial, the case trial all accords with the characteristic of the free heart evidence system. It is concluded that the free evidence system was still used in the judicial practice at that time. The fourth part, the analysis of the free heart evidence system. This part illustrates the progressive nature of the free evidence system at that time and its beneficial influence on the society. At the same time, from the problems exposed in the judicial trial, to illustrate that the system at that time still has defects. Finally, in the conclusion of this paper, we explain the administrative litigation that has not been involved in the full text. The reason why we did not study it is that the administrative litigation system at that time was not perfect and there was no clear explanation of the evidence system. Second, the author of the administrative proceedings on the hand of the case is less, can not be fully investigated. But overall, the evidence system of administrative proceedings also has the shadow of free evidence 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】：2012
【分類號(hào)】：D929
本文編號(hào)：2230547
[Abstract]:This paper focuses on the analysis of the application of the free evidence system in the legal system and judicial practice of the Nanjing National Government at that time, and probes into the advantages and disadvantages of the system at that time. The full text is divided into four parts, the following is a brief introduction to each part: the first part, the summary of the free evidence system. In the introduction, this paper points out that there are many controversies about the evidence system of the Nanjing National Government at present, and the main difference is whether the free evidence system or the legal evidence system is practiced in this period. In order to reach a correct conclusion, we must first make clear the characteristics and differences between the two systems, so the first part makes a brief analysis of the historical environment of the existence of various evidential systems, that is, from the historical point of view, Then, the characteristics of the free evidence system are explained in a comparative way, which paves the way for the following discussion theoretically. The second part is the legal analysis of the free evidence system in the Nanjing National Government. This part is from the point of view of the legal system to explore the system of evidence at that time. First of all, it discusses the transplantation and evolution of the system of free heart evidence, and then takes the Civil procedure Law and the Criminal procedure Law, which were the most typical at that time, as the research objects. It reveals the essence of the evidence system at that time: 1, the power of proof shall be judged by the court. The evidence shall be investigated by the judge one by one. After the investigation of the evidence, there should be a verbal debate on the facts and the law. The judgment should state the reasons for the judgment. -that is, the process of heart syndrome. At last, the author analyzes the flexibility of the free evidence system in the wartime legal system. The third part, the free psychological evidence in the practice of judicial trial in the rear area of the War of Resistance against Japan. This part takes the judicial trial of the typical period of Nanjing National Government as the research object, takes the rule of experience as the breakthrough point, carries on the analysis from the common case and the special criminal case trial, the case trial all accords with the characteristic of the free heart evidence system. It is concluded that the free evidence system was still used in the judicial practice at that time. The fourth part, the analysis of the free heart evidence system. This part illustrates the progressive nature of the free evidence system at that time and its beneficial influence on the society. At the same time, from the problems exposed in the judicial trial, to illustrate that the system at that time still has defects. Finally, in the conclusion of this paper, we explain the administrative litigation that has not been involved in the full text. The reason why we did not study it is that the administrative litigation system at that time was not perfect and there was no clear explanation of the evidence system. Second, the author of the administrative proceedings on the hand of the case is less, can not be fully investigated. But overall, the evidence system of administrative proceedings also has the shadow of free evidence 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】：2012
【分類號(hào)】：D929
【參考文獻(xiàn)】
相關(guān)期刊論文 前1條
1 胡云飛;;清末民國時(shí)期證據(jù)制度的證明標(biāo)準(zhǔn)研究[J];消費(fèi)導(dǎo)刊;2009年18期
本文編號(hào)：2230547
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