論刑事訴訟中的法官說理
發(fā)布時間：2019-01-18 17:15
【摘要】：“法者所以興功懼暴也,律者所以定分止爭也,令者所以令人知事也”①。司法所追求的原始目的是“定紛止爭”,即使是在現(xiàn)代法治社會,司法的目的也無外乎于此。因此,如何才能使司法達到“定紛止爭”之效呢?眾所周知,所謂司法,即通過法官給出判決以重新界定當事人之間權(quán)利義務(wù)關(guān)系的過程。從上述關(guān)于司法概念的界定可知,在司法過程中判決的作出者——法官,毫無疑問地起著舉足輕重的作用,他們的不同舉動將導致司法效果的迥異。同時,多年的實踐也告訴我們,欲使司法達到“定紛止爭”之效,法官責任重大。所以,在訴訟中,法官應該正確履行自己的職責,嚴格依法辦事,確保判決結(jié)果的公平公正,以實現(xiàn)司法的初衷。然而,僅有依法辦事,公平公正地判決結(jié)果就能實現(xiàn)“定紛止爭”嗎?我國現(xiàn)今大量涌現(xiàn)的上訴上訪現(xiàn)象告訴我們：要真正實現(xiàn)司法“定紛止爭”之初衷,法官僅能確保判決結(jié)果公平公正是遠遠不夠的,還須保證結(jié)果合理易懂,即法官判決應該加強說理,以更好地向公眾公開判決所得結(jié)果之依據(jù)、理由等。法官如能詳細地解釋其所作判決之事實與理由,動之以情曉之以理,不僅具有普及法律的作用,還能促使當事人認同判決,最終使法律被遵守,糾紛得以化解。因此,可以說判決“合理易懂”和“公平公正”一樣重要,都是保證司法效果實現(xiàn)的重要手段。 筆者正是基于對法官說理之重要性的充分認識,才做此選題,希望通過本文以引起更多法官對于說理的重視,也為法官今后該如何說理提供一點建議。全文共分為四個部分： 第一部分主要講述法官說理的一般理論原理,包括法官說理的概念和價值。法官說理,顧名思義就是指法官在做出裁判時必須給出裁判理由。法官說理具有多方面的價值,不僅能夠促進實體正義,也能促進程序正義,除此在外,在節(jié)約司法資源和增強法律的公信力等方面也存在很大價值。 第二部分的主要內(nèi)容是法官說理的域外法比較。本文從大陸法系和英美法系法官的說理風格和形成原因入手,對兩大法系的法官說理進行了比較,在此基礎(chǔ)上國外法官說理對我國的啟示。 第三部分主要闡述了我國法官說理存在的主要問題及其原因。法官說理存在的問題主要集中在事實認定、法律適用和合理判決的做出上。這些問題是多方面因素共同作用的結(jié)果,既有傳統(tǒng)因素的影響,也有法官自身的原因。 第四部分提出了完善我國法官說理的對策。本文針對我國法官說理存在的問題,提出從推進裁判文書改革,強化律師對法官說理的推動,加強法官的職業(yè)道德建設(shè)等多方面措施來促進法官說理。
[Abstract]:"the Dharma is so glad to fear violence, the law is so determined to stop the dispute, so that the governor so also." 1. The original aim of judicature is to settle disputes, even in modern society of ruling by law, the aim of judicature is nothing more than this. Therefore, how can we achieve the effect of "settling disputes and ending disputes" in the administration of justice? As is known to all, justice is the process of redefining the relationship between rights and obligations by a judge. From the above definition of judicial concept, it can be seen that the judge, plays an important role in the judicial process, and their different actions will lead to different judicial effects. At the same time, the practice for many years also tells us that judges have a heavy responsibility to achieve the effect of "settling disputes". Therefore, in the lawsuit, the judge should carry out his duty correctly, handle affairs strictly according to law, ensure the justice of the judgment result, in order to realize the original intention of the judicature. However, only according to law, a fair and just judgment results can achieve "settle disputes"? The phenomenon of appeal petition in large numbers in our country tells us that in order to realize the original intention of judicial "settling disputes", it is far from enough for the judge to ensure the fairness and fairness of the judgment result, and also to ensure that the result is reasonable and easy to understand. That is to say, the judge's decision should strengthen reasoning to better disclose the basis and reason of the result to the public. If the judge can explain the facts and reasons of his judgment in detail and persevere with the feeling, it will not only popularize the law, but also urge the parties to identify with the judgment, finally make the law be obeyed and the dispute resolved. Therefore, it can be said that judgment is as important as fairness and justice, and it is an important means to guarantee the realization of judicial effect. It is based on the full understanding of the importance of the judge reasoning, I do this topic, hope to attract more judges to the importance of reasoning through this article, but also for judges to provide some advice on how to reason in the future. The paper is divided into four parts: the first part mainly describes the general theory of judge reasoning, including the concept and value of judge reasoning. Judge reason, as the name implies, means that the judge in the decision must give the reasons for the decision. Judge reasoning has many values, not only to promote substantive justice, but also to promote procedural justice, in addition to this, there is great value in saving judicial resources and enhancing the public credibility of the law. The second part of the main content is the comparison of the extraterritorial law of the judge reasoning. This article starts with the judge's reasoning style and forming reason of the civil law system and the common law system, and compares the judge reasoning of the two major legal systems, on the basis of which, the enlightenment of the foreign judge reasoning to our country is given. The third part mainly expounds the main problems and reasons of our country judge reasoning. The problems of judge reasoning mainly focus on the fact-finding, the application of law and the making of reasonable judgment. These problems are the result of many factors, both traditional factors and judges themselves. The fourth part puts forward the countermeasures to perfect the reasoning of judges in our country. Aiming at the problems existing in the reasoning of judges in China, this paper puts forward many measures to promote the reasoning of judges, such as promoting the reform of adjudicative documents, strengthening the promotion of lawyers to the reasoning of judges, strengthening the construction of judges' professional ethics, and so on.
【學位授予單位】：華中師范大學
【學位級別】：碩士
【學位授予年份】：2012
【分類號】：D925.2;D926.2
本文編號：2410932
[Abstract]:"the Dharma is so glad to fear violence, the law is so determined to stop the dispute, so that the governor so also." 1. The original aim of judicature is to settle disputes, even in modern society of ruling by law, the aim of judicature is nothing more than this. Therefore, how can we achieve the effect of "settling disputes and ending disputes" in the administration of justice? As is known to all, justice is the process of redefining the relationship between rights and obligations by a judge. From the above definition of judicial concept, it can be seen that the judge, plays an important role in the judicial process, and their different actions will lead to different judicial effects. At the same time, the practice for many years also tells us that judges have a heavy responsibility to achieve the effect of "settling disputes". Therefore, in the lawsuit, the judge should carry out his duty correctly, handle affairs strictly according to law, ensure the justice of the judgment result, in order to realize the original intention of the judicature. However, only according to law, a fair and just judgment results can achieve "settle disputes"? The phenomenon of appeal petition in large numbers in our country tells us that in order to realize the original intention of judicial "settling disputes", it is far from enough for the judge to ensure the fairness and fairness of the judgment result, and also to ensure that the result is reasonable and easy to understand. That is to say, the judge's decision should strengthen reasoning to better disclose the basis and reason of the result to the public. If the judge can explain the facts and reasons of his judgment in detail and persevere with the feeling, it will not only popularize the law, but also urge the parties to identify with the judgment, finally make the law be obeyed and the dispute resolved. Therefore, it can be said that judgment is as important as fairness and justice, and it is an important means to guarantee the realization of judicial effect. It is based on the full understanding of the importance of the judge reasoning, I do this topic, hope to attract more judges to the importance of reasoning through this article, but also for judges to provide some advice on how to reason in the future. The paper is divided into four parts: the first part mainly describes the general theory of judge reasoning, including the concept and value of judge reasoning. Judge reason, as the name implies, means that the judge in the decision must give the reasons for the decision. Judge reasoning has many values, not only to promote substantive justice, but also to promote procedural justice, in addition to this, there is great value in saving judicial resources and enhancing the public credibility of the law. The second part of the main content is the comparison of the extraterritorial law of the judge reasoning. This article starts with the judge's reasoning style and forming reason of the civil law system and the common law system, and compares the judge reasoning of the two major legal systems, on the basis of which, the enlightenment of the foreign judge reasoning to our country is given. The third part mainly expounds the main problems and reasons of our country judge reasoning. The problems of judge reasoning mainly focus on the fact-finding, the application of law and the making of reasonable judgment. These problems are the result of many factors, both traditional factors and judges themselves. The fourth part puts forward the countermeasures to perfect the reasoning of judges in our country. Aiming at the problems existing in the reasoning of judges in China, this paper puts forward many measures to promote the reasoning of judges, such as promoting the reform of adjudicative documents, strengthening the promotion of lawyers to the reasoning of judges, strengthening the construction of judges' professional ethics, and so on.
【學位授予單位】：華中師范大學
【學位級別】：碩士
【學位授予年份】：2012
【分類號】：D925.2;D926.2
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