彭宇案的法律思考
发布时间：2018-11-19 20:54
【摘要】：著名法学家耶林说道,法律与道德的关系问题是法学中的好望角;那些法律航海者只要能够征服其中的危险,就再无遭受灭顶之灾的风险了。法律与道德的关系不仅是一个重大的法哲学理论问题,也是关于社会治理的重大实践问题。随着社会生活的日益丰富多彩,法律与道德的关系也更加复杂化,在处理法律与道德的关系方面,给法律人提出了更高的要求。 法院是法律帝国的首都,法官是帝国的王侯。法律是维护正义的最后屏障,法官作为法律的运用者,能否处理好法律与道德的关系,将直接影响到一些案件的处理,尤其是掺杂道德因素案件的处理。如何处理掺杂道德因素的案件,也成为法官所必须要解决的问题。笔者在此试从彭宇案出发,阐述法官在处理彭宇案时存在的错误,并对如何处理掺杂诸多道德因素的案件提出一些建议。本文分为三个部分: 第一部分是彭宇案的概述,介绍了法院的判决结果、判决理由、案件的媒体报道情况、案件的评价以及产生的社会影响。 第二部分是在案件事实的基础上,从四个方面阐述彭宇案中存在的错误,一是道德基础——偏离公正;二是法律运用的失当;三是本案中法律与道德的关系;四是法官没有使正义得到维护。 第三部分是对彭宇案的反思,阐明道德因素对法官裁决的影响,认为法官要维护正义,就应该服从法律,遵守法律规定,减少道德的考量。
[Abstract]:The famous jurist Yering said that the relationship between law and morality is the corner of good faith in law; those who are legal navigators are no longer at risk of extinction as long as they can conquer the dangers. The relationship between law and morality is not only a major theoretical issue of legal philosophy, but also a major practical issue of social governance. With the increasingly rich and colorful social life, the relationship between law and morality is becoming more complicated. In dealing with the relationship between law and morality, a higher requirement is put forward to the legal person. The court is the capital of the legal empire, and the judge is the king of the empire. Law is the last barrier to maintain justice. Judge, as the user of law, can deal with the relationship between law and morality, which will directly affect the handling of some cases, especially the cases with mixed moral factors. How to deal with cases involving moral factors has also become a problem that judges must solve. Starting from Peng Yu's case, the author expounds the mistakes of the judge in dealing with Peng Yu's case, and puts forward some suggestions on how to deal with the cases with many moral factors. This paper is divided into three parts: the first part is an overview of the case of Peng Yu, including the court's decision, the reasons for the judgment, the media report of the case, the evaluation of the case and its social impact. The second part is based on the facts of the case, from four aspects to explain the errors in Peng Yu case, one is the moral basis-deviating from justice, the other is the misapplication of the law, the third is the relationship between law and morality in this case; Fourth, the judge failed to uphold justice. The third part is the reflection of Peng Yu's case, expounding the influence of moral factors on judge's ruling, holding that if judges want to maintain justice, they should obey the law, abide by the law, and reduce the moral considerations.
【学位授予单位】：上海交通大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D90-05;D926.2
本文编号：2343391
[Abstract]:The famous jurist Yering said that the relationship between law and morality is the corner of good faith in law; those who are legal navigators are no longer at risk of extinction as long as they can conquer the dangers. The relationship between law and morality is not only a major theoretical issue of legal philosophy, but also a major practical issue of social governance. With the increasingly rich and colorful social life, the relationship between law and morality is becoming more complicated. In dealing with the relationship between law and morality, a higher requirement is put forward to the legal person. The court is the capital of the legal empire, and the judge is the king of the empire. Law is the last barrier to maintain justice. Judge, as the user of law, can deal with the relationship between law and morality, which will directly affect the handling of some cases, especially the cases with mixed moral factors. How to deal with cases involving moral factors has also become a problem that judges must solve. Starting from Peng Yu's case, the author expounds the mistakes of the judge in dealing with Peng Yu's case, and puts forward some suggestions on how to deal with the cases with many moral factors. This paper is divided into three parts: the first part is an overview of the case of Peng Yu, including the court's decision, the reasons for the judgment, the media report of the case, the evaluation of the case and its social impact. The second part is based on the facts of the case, from four aspects to explain the errors in Peng Yu case, one is the moral basis-deviating from justice, the other is the misapplication of the law, the third is the relationship between law and morality in this case; Fourth, the judge failed to uphold justice. The third part is the reflection of Peng Yu's case, expounding the influence of moral factors on judge's ruling, holding that if judges want to maintain justice, they should obey the law, abide by the law, and reduce the moral considerations.
【学位授予单位】：上海交通大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D90-05;D926.2
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