判决理由的正当性与“现行观念”的博弈

发布时间：2018-05-03 15:29

本文选题：判决理由 + 正当性　；参考：《中国政法大学》2011年硕士论文

【摘要】：法官期盼着作出公正的判决,并使判决理由令人信服,以维护司法公正,实现社会正义。判决公正的基础和前提是其应具有正当的判决理由。要使判决理由具有正当性,必须在正确地认定事实、恰当地适用法律的基础上,给出理由、作出判决,同时,将判决理由予以公示。判决理由令人信服是判决理由追求社会正义的根本要求,只有令人信服的判决理由,才能真正体现出其自身存在的意义和价值。公正的判决有时候也难以令人信服,之所以这样,往往是因为其判决理由受到了“现行观念”的影响。这里引入的“现行观念”是指法官给出判决理由、作出判决结果时,“当时当地”的社会一般正常人的各种观念的总和。判决理由受“现行观念”影响而导致令人难以信服的主要情形是,判决理由所依据的法律在制定时的立法原意与某些“现行观念”不一致。 “现行观念”会影响法官的判决。当某种“现行观念”经常性地影响并改变法官对原有法律的适用,进而否定判决理由正当性的时候,就应将对原有法律的修改工作提上议程。当各种“现行观念”以各自的观点与立法初衷发生较大争议时,就会使法官面临两难处境,即必须在追求判决理由的正当性和适应“现行观念”之间进行博弈,引起这种博弈的机会是随机的、不确定的,博弈最终产生的结果往往是法官在对两者进行思考、判断后得出的相互妥协的结论,从而使判决结果能为各方所接受,为“当时当地”的人们所信服。而当“现行观念”主要体现为对立法原意的继承或发展时,一般不会发生博弈,只会在判决处罚的轻重上才显示出“现行观念”的影响来。探讨判决理由的正当性与“现行观念”之间的关系,旨在提醒法官,在追求审判公正、判决理由正当的同时,要关注来自“当时当地”社会各方面观念的影响,坚持应该坚持的,采纳应该采纳的,摒弃应该摒弃的,独立判决,确保在作出公正判决的前提下,使判决理由令人信服,达到维护司法公正、实现社会正义的双重目的。
[Abstract]:The judge expects to make a just judgment and make the reason of the judgment convincing in order to safeguard the justice and realize the social justice. The basis and premise of a just judgment is that it should have a just reason for judgment. In order to make the reason of judgment legitimate, we must give the reason and make a judgment on the basis of correctly recognizing the facts and applying the law properly. At the same time, we should publicize the reasons of the judgment. The convincing judgment reason is the fundamental requirement for the judgment reason to pursue the social justice. Only the convincing judgment reason can truly reflect the meaning and value of its own existence. Fair judgments are sometimes unconvincing, often because their reasons are influenced by "current ideas". The "present concept" introduced here refers to the summation of all kinds of ideas of the ordinary normal people in the "local" society when the judge gives the reasons for the judgment and makes the judgment result. Under the influence of "current concept", the main reason for judgment is that the legislative intent of the law on which the reason for judgment is based is inconsistent with that of some "current concepts". The idea of the present will influence the judge's decision. When some kind of "current concept" frequently influences and changes the judge's application to the original law, and then negates the legitimacy of the judgment reason, the revision of the original law should be put on the agenda. When all kinds of "current concepts" are disputed by their own viewpoints and the original intention of legislation, the judges will be faced with a dilemma, that is, they must play a game between pursuing the justification of the judgment reason and adapting to the "current concept". The chance to cause this kind of game is random and uncertain, and the final result of the game is often the mutual compromise conclusion reached by the judge after thinking and judging the two, so that the judgment result can be accepted by all parties. Was convinced by the "local people of the time". When the "current concept" is mainly embodied in the inheritance or development of the legislative intent, there is generally no game, only in the severity of punishment will show the impact of "current concept". This paper probes into the relationship between the legitimacy of the reason of judgment and the "current concept", in order to remind the judge that, while pursuing the justice of the trial and the justification of the reason for the judgment, he should pay attention to the influence of the ideas from all aspects of the "local" society at that time. To insist on what should be adhered to, to adopt what should be adopted, to abandon what should be abandoned, to decide independently, to ensure that the reason of judgment is convincing under the premise of making just judgment, to maintain judicial justice and to realize social justice.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D915.182;D916.2

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