论司法过程中的利益衡量

发布时间：2018-08-07 19:15

【摘要】：利益衡量理论自产生以来,受到理论界和实务界持续的关注和研究,并形成了各具特色的理论。同时,法官在司法过程中也进行了利益衡量的实践。本文将研究的方向限定在司法过程中的利益衡量,并且认为司法过程中的利益衡量是法官的一种法律思维活动,带有很强的主观性特征。既然利益衡量具有主观性,如何保证其裁判结论的正确性或客观性,这是肯定或否定利益衡量各方都关注的地方。本文主要从四个方面对司法过程中的利益衡量进行分析、阐述。第一章主要对利益衡量理论的产生和发展情况做了简单的介绍和梳理。介绍了德国的利益法学与评价法学中的利益衡量理论,美国庞德的社会工程法学中的利益衡量理论以及日本的利益衡量理论,并对各种理论进行了简要评析。第二章通过对各种观点的对比,对司法过程中的利益衡量进行了界定,提出了利益衡量是法官的一种法律思维方法,是一种主观性活动。同时,从法律文本的解释、价值补充和法律漏洞的填补以及法律推理的过程等方面对利益衡量的必要性进行证明。第三章介绍了司法过程中利益衡量的运用。界定了利益衡量的范围,认为利益衡量作为法官的法律思维方法,其贯穿于整个司法过程,但其适用还有一定的界限;分析了利益衡量的步骤,主要可简单归纳为实质判断加上法律依据,并对拉伦茨的观点进行了研究。同时结合实践案例对利益衡量的标准进行了确认,主要分析了法定标准和法外标准的确认。第四章主要分析了利益衡量正当性问题,这也是本文的核心部分。该部分先对利益衡量正当性问题进行反思,对相关批评给予评价。通过分析,认为利益衡量的正当性可以基于一定的标准给予事后的审查和检讨。接下来本文主要以评价法学的理论对利益衡量裁判结论的正当化进行分析,主要从现行法正当性的假定和在现行法基础上进行的利益衡量两个方面展开说明。最后本部分探讨了利益衡量过程中法官恣意的遏制问题,主要从内部和外部两个方面进行。内部规制主要是法官职业素养的形成;外部规制主要是通过实践案例分析了判决书的审判理由附随,以及通过诉讼程序的制约等方面进行。
[Abstract]:Since its emergence, the theory of interest measurement has been continuously paid attention to and studied by the theoretical and practical circles, and has formed the theory with its own characteristics. At the same time, the judge also carried out the practice of interest measurement in the judicial process. This paper limits the research direction to the interest measurement in the judicial process, and thinks that the interest measurement in the judicial process is a kind of legal thinking activity of the judge, and has the very strong subjective characteristic. Since the interest measurement is subjective, how to ensure the correctness or objectivity of the judgment conclusion is the positive or negative interest measurement of all parties concerned. This article mainly from four aspects of the judicial process of interest measurement analysis, elaborated. The first chapter mainly introduces and combs the emergence and development of interest measurement theory. This paper introduces the theory of interest measurement in interest law and evaluation law in Germany, the theory of interest measurement in social engineering law of American pound and the theory of interest measurement in Japan, and makes a brief comment on the various theories. In the second chapter, through the comparison of various viewpoints, the author defines the interest measurement in the judicial process, and puts forward that the interest measurement is a kind of legal thinking method of the judge, and is a subjective activity. At the same time, the necessity of interest measurement is proved in terms of the interpretation of legal texts, the supplement of value and the filling of legal loopholes, as well as the process of legal reasoning. The third chapter introduces the application of interest measurement in the judicial process. It defines the scope of interest measurement, holds that as a judge's legal thinking method, it runs through the whole judicial process, but its application still has certain limits, and analyzes the steps of interest measurement. It can be summed up as substantive judgment and legal basis, and the point of view of Larenz is studied. At the same time, the standard of interest measurement is confirmed by practical cases, and the confirmation of legal standard and extrajudicial standard is mainly analyzed. The fourth chapter analyzes the legitimacy of interest measurement, which is the core of this paper. This part reflects on the legitimacy of interest measurement and evaluates the relevant criticism. Through analysis, it is concluded that the legitimacy of interest measurement can be reviewed and reviewed afterwards on the basis of certain standards. Then this paper mainly uses the theory of evaluation law to analyze the legitimacy of interest measurement judgment, mainly from the assumption of legitimacy of current law and the interest measurement based on current law. Finally, this part discusses the arbitrary containment of judges in the process of interest measurement, mainly from the internal and external aspects. Internal regulation is mainly the formation of judges' professional literacy; external regulation is mainly through practical cases to analyze the trial reasons attached to the judgment, as well as through the procedural constraints and other aspects.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D916

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