论南京国民政府时期的法官制度
发布时间：2019-02-17 18:46
【摘要】： 在一个国家和社会,法官制度由于其居于法的适用活动中的枢纽位置而成为司法制度中最核心的制度。中国古代司法官的选任资格、地位保障、能力保障等均未形成独立的规范性规则体系和制度性事实,因此不能说已经形成法官制度。中国近代化法官制度开始于晚清司法制度的改革运动,自此,法官独立审判制度和法官选任制度从制度上获得确立。民国时期,是中国法官制度实现现代化的时期,南京临时政府、北洋政府、南京国民政府在清末司法制度改革基础之上,进一步学习和借鉴西方先进的司法观念和司法制度,并结合当时中国具体的国情,以理性建构为主,即通过立法来推进司法制度的现代化,最终使中国的司法制度终于成功地实现了现代化,基本跟上了世界司法制度改革发展的潮流。 孙中山先生在领导资产阶级民主革命、创建民国的过程中,博采西方各国之长,吸纳中国古代思想精华,创造性地提出了以“五权宪法”为核心的民主宪政思想,以“五权分立”、“权能分治”、“地方自治”、“革命程序论”为主要代表。南京国民政府正是在“五权宪法”思想的指导下,确立了五院制国民政府政治体制。“五权分立,这不但是各国制度上所未有,便是学说上也不多见,可谓破天荒的整体”,因此这种政府体制下的法官制度的具体内容也有了其自身的特色。而且,南京国民政府构建的法官制度之所以随着国民党逃亡台湾而在大陆消失殆尽,对以后中国社会并没有留下深远的影响,只在台湾省继续有效,其中有多方面的原因,既有当时整个中国社会总体环境包括政治、经济、思想文化方面的原因,也有国民党政府自身方面的原因。 本文通过对史料及各个时期学者专家的论著的收集和分析,对南京国民政府时期的法官制度进行了一定程度的介绍和分析研究。第一部分首先简单分析了南京国民政府法官制度的渊源,包括理论上和制度上的渊源,理论上包括西方近代的一些司法观念、原则和孙中山的五权宪法思想,制度上主要是中国近代在学习和借鉴西方法官制度方面的实践成果;第二部分具体介绍了这一时期法官制度的具体内容,包括司法官的考试任用、考绩奖惩、法官待遇和保障等制度;第三部分主要是对比同时期的外国法官制度,揭示两者之间制度内容的共同之处和区别之处,并简单作了分析和总结;第四部分对这一时期的法官制度进行了整体性评价,首先结合五院制政府体制的特点对法官制度进行评价,接着又对南京国民政府的法官制度实际运行状况进行了评析,并分析了造成这一状况的原因及教训。
[Abstract]:In a country and society, the judge system has become the core of the judicial system because it occupies the pivotal position in the application of law. In ancient China, the qualification, status guarantee and ability guarantee of judges did not form an independent system of normative rules and institutional facts, so it can not be said that the system of judges has been formed. The modern judge system in China began with the reform of the judicial system in the late Qing Dynasty. Since then, the independent trial system of judges and the selection and appointment system of judges have been established in the system. The period of the Republic of China is the period of the modernization of the Chinese judge system. On the basis of the reform of the judicial system in the late Qing Dynasty, the interim Government of Nanjing, the Government of Beiyang and the Government of the National people's Republic of Nanjing have further studied and learned from the advanced judicial concepts and systems of the West. Combined with the specific conditions of China at that time, rational construction was the main task, that is, to promote the modernization of the judicial system through legislation, so that China's judicial system was finally modernized successfully. Basically kept up with the trend of the reform and development of the world judicial system. In the process of leading bourgeois democratic revolution and founding the Republic of China, Mr. Sun Zhongshan took the advantage of the western countries, absorbed the essence of ancient Chinese thought, and creatively put forward the democratic constitutional thought with the "five-power constitution" as the core. It is mainly represented by "the separation of five powers", "the division of power", "local autonomy" and "the theory of revolutionary procedure". Under the guidance of the five-power Constitution, the Nanjing National Government established the political system of the five-house national government. "the separation of five powers, which is not only in the system of countries, but also in theory is rare, it can be described as an unprecedented whole," so the specific content of the system of judges under the system of government also has its own characteristics. Moreover, the fact that the judge system set up by the Nanjing National Government disappeared in the mainland as the Kuomintang fled to Taiwan did not have a profound impact on Chinese society in the future, but only continued to be effective in Taiwan Province. There are many reasons for this. At that time, the overall social environment of China included political, economic, ideological and cultural reasons, but also the KMT government itself. Based on the collection and analysis of historical materials and the works of scholars and experts in various periods, this paper introduces and analyzes the system of judges in the period of Nanjing National Government to a certain extent. The first part briefly analyzes the origin of the judge system of Nanjing National Government, including its theoretical and institutional origin, including some judicial concepts, principles, and Sun Zhongshan's constitutional thoughts of five powers in western modern times. The system is mainly a result of the practice of learning and drawing lessons from the western judge system in modern China. The second part introduces the specific contents of the judge system in this period, including the examination and appointment of magistrates, performance rewards and punishments, the treatment and protection of judges and so on; The third part mainly compares the foreign judge system of the same period, reveals the common place and the difference between the two systems, and makes the simple analysis and summary; The fourth part has carried on the overall appraisal to this period judge system, first unifies the five house system government system characteristic to carry on the appraisal to the judge system, then has carried on the appraisal to the Nanjing national government's judge system actual operation condition. The causes and lessons of this situation are analyzed.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D693.23;D926.2;D929
本文编号：2425477
[Abstract]:In a country and society, the judge system has become the core of the judicial system because it occupies the pivotal position in the application of law. In ancient China, the qualification, status guarantee and ability guarantee of judges did not form an independent system of normative rules and institutional facts, so it can not be said that the system of judges has been formed. The modern judge system in China began with the reform of the judicial system in the late Qing Dynasty. Since then, the independent trial system of judges and the selection and appointment system of judges have been established in the system. The period of the Republic of China is the period of the modernization of the Chinese judge system. On the basis of the reform of the judicial system in the late Qing Dynasty, the interim Government of Nanjing, the Government of Beiyang and the Government of the National people's Republic of Nanjing have further studied and learned from the advanced judicial concepts and systems of the West. Combined with the specific conditions of China at that time, rational construction was the main task, that is, to promote the modernization of the judicial system through legislation, so that China's judicial system was finally modernized successfully. Basically kept up with the trend of the reform and development of the world judicial system. In the process of leading bourgeois democratic revolution and founding the Republic of China, Mr. Sun Zhongshan took the advantage of the western countries, absorbed the essence of ancient Chinese thought, and creatively put forward the democratic constitutional thought with the "five-power constitution" as the core. It is mainly represented by "the separation of five powers", "the division of power", "local autonomy" and "the theory of revolutionary procedure". Under the guidance of the five-power Constitution, the Nanjing National Government established the political system of the five-house national government. "the separation of five powers, which is not only in the system of countries, but also in theory is rare, it can be described as an unprecedented whole," so the specific content of the system of judges under the system of government also has its own characteristics. Moreover, the fact that the judge system set up by the Nanjing National Government disappeared in the mainland as the Kuomintang fled to Taiwan did not have a profound impact on Chinese society in the future, but only continued to be effective in Taiwan Province. There are many reasons for this. At that time, the overall social environment of China included political, economic, ideological and cultural reasons, but also the KMT government itself. Based on the collection and analysis of historical materials and the works of scholars and experts in various periods, this paper introduces and analyzes the system of judges in the period of Nanjing National Government to a certain extent. The first part briefly analyzes the origin of the judge system of Nanjing National Government, including its theoretical and institutional origin, including some judicial concepts, principles, and Sun Zhongshan's constitutional thoughts of five powers in western modern times. The system is mainly a result of the practice of learning and drawing lessons from the western judge system in modern China. The second part introduces the specific contents of the judge system in this period, including the examination and appointment of magistrates, performance rewards and punishments, the treatment and protection of judges and so on; The third part mainly compares the foreign judge system of the same period, reveals the common place and the difference between the two systems, and makes the simple analysis and summary; The fourth part has carried on the overall appraisal to this period judge system, first unifies the five house system government system characteristic to carry on the appraisal to the judge system, then has carried on the appraisal to the Nanjing national government's judge system actual operation condition. The causes and lessons of this situation are analyzed.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D693.23;D926.2;D929
【引证文献】
相关硕士学位论文 前2条
1 巫芳兰;南京国民政府时期涉外继承制度考察[D];上海师范大学;2010年
2 周圣;《上海地方审判厅司法实记》中的民事案例浅析[D];复旦大学;2010年
，本文编号：2425477
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