民意进入司法的法理学思索
发布时间：2018-08-31 08:04
【摘要】：民意是由民众意愿组成,代表了大多数人的意志,司法系统也应倾听民意。社会契约论,是作为一种理论被我们认知的,它是对社会构成与运行方式的一种反思与推测。近代西方社会的民意研究起源于卢梭的《社会契约论》。伴随司法制度的职业化,民意与司法的冲突逐渐显现。司法既要吸收民意,又要排除民意对其的不当干扰,这种现状造成了司法制度的困境。司法是否职业化,司法改革的宗旨是服务民众,脱离了民意再好的司法制度都是无源之水、无本之木。在中国,民意和道德情理联系在一起,而司法制度主要是从西方法律移植而来,民众的思维逻辑与司法逻辑差异很大。民意希望司法系统承担更多的社会任务,甚至是政治任务,而司法往往具有自身的局限,不能实现民众的全部愿望。民意对司法的影响是双重的,既有积极意义又有消极影响。民意的积极意义表现在民众对法治的关注热情高涨,这符合社会主义法治理念,符合司法改革方向并推动社会主义和谐社会建设。民意的消极影响主要表现在抵触司法程序,影响司法的权威和效率,这就会阻碍、推迟社会主义法治的建设。 尊重民意是民主理论中的一个基本思想,今天,在一些民主政治比较发达的社会,民意确实发挥着社会公共生活的基础作用。把民意引入司法程序实践是西方法律的一种传统,它贯穿于整个西方的法律文明。早在古希腊的雅典就出现了公民陪审法庭,被称为“赫里埃”。在古罗马也出现了类似的陪审法庭,它的作用是专门用来审判刑事案件。我国陪审制制度的建立需要借鉴西方优秀制度,同时考虑中国社会现状,才能做到合理体现民意推动司法。我国的司法制度有着自己的特殊性和历史使命,一方面,司法改革的目标就是要建立一个廉洁、公正、专业化和职业化的法院体系,通过其独立的司法活动为社会服务。另一方面,人民法院处理民意与司法的过程中需要积极运用“能动司法”主动服务大局,服务民众社会生活,做到司法为民。应当正确理解和运用“能动司法”,尊重司法规律和现实国情,坚持能动主义与克制主义相结合,区别不同情况,有所为有所不为。司法系统合理正当的制度设计是处理民意与司法关系的重要方式。合理正当的制度设计可以维护司法独立,同时检测民意的合法性,民意也可以通过制度设计的渠道顺利进入司法审判。司法机关和司法工作者必须善于进行价值整合和价值衡平,必须注意克服价值偏向,不断满足人民群众日益丰富的司法需求。司法在了解社会各方利益诉求的基础上,科学引导民意,寻求整合社会各方利益的途径。民意和媒体也应当从不同角度多侧面地理解和认识司法,合理地进行舆论监督,理性地的评价和接受司法产品,为司法的健康发展创造良好的人文和舆论环境。
[Abstract]:Public opinion is made up of popular will, representing the will of the majority, and the judicial system should listen to it. The theory of social contract, which is recognized by us as a theory, is a reflection and speculation on the composition and operation of society. The study of public opinion in modern western society originated from Rousseau's Theory of Social contract. With the professionalization of the judicial system, the conflict between public opinion and the judiciary gradually appears. The judicature should absorb public opinion and eliminate the improper interference of public opinion, which results in the dilemma of judicial system. The aim of judicial reform is to serve the public. In China, public opinion and moral reason are linked together, and the judicial system is mainly transplanted from western law. The people's thinking logic and judicial logic are very different. Public opinion wants the judicial system to undertake more social tasks, even political tasks, and justice often has its own limitations and can not realize all the wishes of the people. The influence of public opinion on justice is dual, both positive and negative. The positive meaning of public opinion is that the people pay more attention to the rule of law, which accords with the idea of socialist rule of law, conforms to the direction of judicial reform and promotes the construction of socialist harmonious society. The negative influence of public opinion is mainly reflected in the conflict of judicial procedure and the authority and efficiency of judicature, which will hinder and delay the construction of socialist rule of law. Respect for public opinion is a basic idea in democratic theory. Today, in some societies where democracy is relatively developed, public opinion really plays a fundamental role in social public life. It is a tradition of western law to introduce public opinion into the practice of judicial procedure, which runs through the legal civilization of the whole west. As early as Athens, Greece, there was a civil jury court, known as "Heriere." A similar jury court appeared in ancient Rome, whose role was specifically used to try criminal cases. The establishment of the jury system in our country needs to draw lessons from the excellent western system and take into account the present situation of Chinese society in order to reasonably reflect the public opinion and promote the administration of justice. The judicial system of our country has its own particularity and historical mission. On the one hand, the goal of judicial reform is to establish a clean, impartial, professional and professional court system to serve the society through its independent judicial activities. On the other hand, the people's court should actively use "active judicature" to serve the overall situation, serve the social life of the people and do justice for the people in the process of dealing with public opinion and judicature. We should correctly understand and use "active justice", respect the law of justice and the actual national conditions, adhere to the combination of activism and restraint, distinguish different situations and do something wrong. Reasonable and proper system design of judicial system is an important way to deal with the relationship between public opinion and judicature. Reasonable and proper system design can maintain judicial independence, at the same time check the legitimacy of public opinion, public opinion can enter the judicial trial smoothly through the channel of system design. Judicial organs and judicial workers must be good at value integration and value balance, must pay attention to overcoming value bias, and constantly meet the increasing judicial needs of the people. On the basis of understanding the interests of all parties in the society, the judiciary scientifically guides public opinion and seeks ways to integrate the interests of all parties in the society. Public opinion and media should also understand and understand justice from different angles, rationally supervise public opinion, rationally evaluate and accept judicial products, and create a good humanistic and public opinion environment for the healthy development of justice.
【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D916
本文编号：2214386
[Abstract]:Public opinion is made up of popular will, representing the will of the majority, and the judicial system should listen to it. The theory of social contract, which is recognized by us as a theory, is a reflection and speculation on the composition and operation of society. The study of public opinion in modern western society originated from Rousseau's Theory of Social contract. With the professionalization of the judicial system, the conflict between public opinion and the judiciary gradually appears. The judicature should absorb public opinion and eliminate the improper interference of public opinion, which results in the dilemma of judicial system. The aim of judicial reform is to serve the public. In China, public opinion and moral reason are linked together, and the judicial system is mainly transplanted from western law. The people's thinking logic and judicial logic are very different. Public opinion wants the judicial system to undertake more social tasks, even political tasks, and justice often has its own limitations and can not realize all the wishes of the people. The influence of public opinion on justice is dual, both positive and negative. The positive meaning of public opinion is that the people pay more attention to the rule of law, which accords with the idea of socialist rule of law, conforms to the direction of judicial reform and promotes the construction of socialist harmonious society. The negative influence of public opinion is mainly reflected in the conflict of judicial procedure and the authority and efficiency of judicature, which will hinder and delay the construction of socialist rule of law. Respect for public opinion is a basic idea in democratic theory. Today, in some societies where democracy is relatively developed, public opinion really plays a fundamental role in social public life. It is a tradition of western law to introduce public opinion into the practice of judicial procedure, which runs through the legal civilization of the whole west. As early as Athens, Greece, there was a civil jury court, known as "Heriere." A similar jury court appeared in ancient Rome, whose role was specifically used to try criminal cases. The establishment of the jury system in our country needs to draw lessons from the excellent western system and take into account the present situation of Chinese society in order to reasonably reflect the public opinion and promote the administration of justice. The judicial system of our country has its own particularity and historical mission. On the one hand, the goal of judicial reform is to establish a clean, impartial, professional and professional court system to serve the society through its independent judicial activities. On the other hand, the people's court should actively use "active judicature" to serve the overall situation, serve the social life of the people and do justice for the people in the process of dealing with public opinion and judicature. We should correctly understand and use "active justice", respect the law of justice and the actual national conditions, adhere to the combination of activism and restraint, distinguish different situations and do something wrong. Reasonable and proper system design of judicial system is an important way to deal with the relationship between public opinion and judicature. Reasonable and proper system design can maintain judicial independence, at the same time check the legitimacy of public opinion, public opinion can enter the judicial trial smoothly through the channel of system design. Judicial organs and judicial workers must be good at value integration and value balance, must pay attention to overcoming value bias, and constantly meet the increasing judicial needs of the people. On the basis of understanding the interests of all parties in the society, the judiciary scientifically guides public opinion and seeks ways to integrate the interests of all parties in the society. Public opinion and media should also understand and understand justice from different angles, rationally supervise public opinion, rationally evaluate and accept judicial products, and create a good humanistic and public opinion environment for the healthy development of justice.
【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D916
【参考文献】
相关期刊论文 前3条
1 刘潇潇;;程序正义如何才能实现——佘祥林案的个案分析及其启示[J];河北法学;2006年05期
2 陈东升;冲突与权衡:法律价值选择的方法论思考[J];法制与社会发展;2003年01期
3 侯健;传媒与司法的冲突及其调整──美国有关法律实践评述[J];比较法研究;2001年01期
相关硕士学位论文 前1条
1 薛佃涛;论公众舆论对我国政治体制改革的推进作用[D];苏州大学;2004年
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