南京国民政府时期的自由心证制度
发布时间：2018-09-08 12:39
【摘要】：本文以南京国民政府时期的自由心证制度为研究对象，重点分析了自由心证制度在当时法律制度和司法实践中的运用，同时对该制度在当时的利弊作了探讨。全文一共分为四大部分，下面对各部分做一个简要介绍： 第一部分，自由心证制度的概括。本文在引言中提出，目前学术界对南京国民政府时期的证据制度存在诸多争论，主要分歧是这个时期实行的是自由心证制度还是法定证据制度。要想得出一个正确结论，首先就要弄清两种制度各自的特点和区别，故第一部分对各种证据制度生存的历史环境做了简要分析，，也就是从历史的角度加以佐证说明，然后以比较的方式重点说明了自由心证制度的特点，从理论上为下文的论述做了铺垫。 第二部分，南京国民政府时期自由心证制度的法律解析。这部分是从法律制度的角度来探究当时的证据制度。首先对自由心证制度的移植和演变做了论述，然后以当时最具典型性的民国二十四年的《民事诉讼法》和《刑事诉讼法》为研究对象，揭示了当时证据制度之精要：1、证据之证明力由法院判断之。2、证据均由法官逐一调查。3、证据调查完毕后应就事实及法律进行言词辩论。4、判决书中应载明判决理由——即心证过程。最后对自由心证制度在战时法制中的变通做了分析。 第三部分，抗战大后方司法审判实践中的自由心证。这部分以南京国民政府的典型时期的司法审判为研究对象，以经验法则为切入点，从普通案件和特别刑事案件的审理进行分析，个案的审判均符合自由心证制度的特点，从而得出当时在司法审判实践中依然用的是自由心证制度。 第四部分，自由心证制度评析。该部分从积极的方面说明自由心证制度在当时的进步性，以及对当时社会产生的有利影响。同时从司法审判中暴露出来的问题，来说明该制度在当时仍然存在缺陷。 最后在本文结语处，对全文一直未涉及的行政诉讼问题进行了说明，之所以没有研究，一是因为当时的行政诉讼制度不完善，对证据制度没有做明确说明，二是笔者手中关于当时行政诉讼的案例较少，无法全面考察。但总体来看，当时行政诉讼证据制度也有自由心证制度的影子。
[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.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D929
本文编号：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.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D929
【参考文献】
相关期刊论文 前1条
1 胡云飞;;清末民国时期证据制度的证明标准研究[J];消费导刊;2009年18期
本文编号：2230547
本文链接：https://www.wllwen.com/falvlunwen/falilunwen/2230547.html
