司法改革背景下的“能动司法”：语义与实践
发布时间：2018-09-05 18:45
【摘要】：如果将司法改革的起始阶段追溯到民事审判方式改革序幕的拉开,司法改革已经走过二十多年的历史。从这二十多年的成果来看,是司法改革将中国的法制建设拉入了正轨。最高人民法院院长王胜俊2009年8月27日至31日在江苏调研时提出:“能动司法是新形势下人民法院服务经济社会发展大局的必然选择。”12011年3月最高法院的工作报告中,能动司法仍然被摆在非常重要的位置,报告开篇便提到:“最高人民法院始终坚持能动司法理念,指导地方各级人民法院找准审判工作服务经济社会发展大局的切入点,为促进经济社会又好又快发展提供有力司法保障。”2可以看到,能动司法是新时期中国司法秉持的政策标杆,且必将在长时期内影响中国司法的进程。本文选取能动司法这样一个视角,对其进行严肃的解读和评价,是对中国司法现状的一种反思。能动司法在中国的司法实践中运行已逾一年半,无论在理论还是实践上均已呈现出政策的全貌,冷静观察全国法院系统这场轰轰烈烈的司法运动,不难看出,显现或者隐含的问题甚至有可能让司法改革多年的成果付诸东流。 本文分为四章,基本结构如下: 第一章,能动司法的缘来及内涵。首先,对能动司法进行界定,指明本文所探讨的能动司法是作为当代中国司法政策意义上的,区别于单纯相对于司法被动性及司法能动主义的能动概念;其次,对能动司法的提出及其背景进行论述,分析作为政治性司法理念的能动司法为何在司法改革的目前阶段产生,以及为何会产生该司法理念而非其它;最后,结合能动司法产生的背景对其内涵进行深层次的探究,并以此为基础对一些关于能动司法的理论进行批驳。通过本章可以了解能动司法何以产生以及其涵义。 第二章,能动司法的运行与实践。侧重分析能动司法政策在实践中的运行。首先,对能动司法在实践中的运作机制进行了探究,指出最高法院和地方法院联动的政策运行机制是确保能动司法政策运行的关键;其次,对能动司法政策在法院具体运行中出现的问题进行了总结。通过本章可以了解,能动司法在实践中的运行机制,以及这一政策在司法实践运行过程中出现了许多违背法治理念的问题。 第三章,能动司法的深层次剖析。本章将能动司法政策在实践运行中所出现的问题概括为两点:一是政策本身的问题;二是政策运行的客观环境所致。政策本身的问题又可分为:过于强调能动性而违背了司法本质的演变规律以及片面强调政治概念,忽视司法规则的运用和司法技术的保障等方面;而政策运行的客观环境则可以概括为司法改革被动回应现实性和主动迎合政治性的特点以及能动司法政策与当代中国法治阶段的不匹配性。通过本章可以了解能动司法政策在实践中出现问题的原因。 第四章:能动司法的“去行政化”:克制主义的进路。本章试图从制度上寻求能动司法的“去行政化”,这可以转化为中国法治处于初级阶段的大前提下奉行什么司法姿态的问题。我们认为,应该奉行司法克制主义的基本立场,同时秉持法学方法和证据制度对“能动性”进行规制。
[Abstract]:Judicial reform has gone through more than 20 years if the initial stage of judicial reform is traced back to the opening of the prelude to the reform of civil trial methods. Active judicature is an inevitable choice for the people's courts to serve the overall economic and social development in the new situation. Judicial work serves the overall situation of economic and social development and provides a strong judicial guarantee for the sound and rapid development of the economy and society. A serious interpretation and evaluation is a reflection on China's judicial situation. Active justice has been in operation in China's judicial practice for more than a year and a half. Both in theory and in practice, it has presented a comprehensive picture of the policy. It is not difficult to see, or to see, the problems that appear or are implied in the vigorous judicial movement of the national court system. It is likely that the result of judicial reform for many years will be lost.
This article is divided into four chapters. The basic structure is as follows:
The first chapter is the origin and connotation of active justice. Firstly, it defines active justice, and points out that the active justice discussed in this paper is an active concept in the sense of contemporary China's judicial policy, which is different from the passivity of judicature and judicial activism. Secondly, it discusses the proposition of active justice and its background, and analyzes the work. In order to explain why the active judicature of the political judicature idea came into being in the present stage of the judicial reform and why it came into being instead of other ideas, this paper makes a deep-seated inquiry into its connotation combined with the background of the active judicature and refutes some theories of the active judicature on the basis of it. How can active justice arise and its implications?
Chapter two, the operation and practice of active justice, focuses on the analysis of the operation of active judicial policy in practice. Firstly, the operation mechanism of active justice in practice is explored, pointing out that the policy operation mechanism of the interaction between the Supreme Court and the local courts is the key to ensure the operation of active judicial policy; secondly, the active judicial policy in the courts. Through this chapter, we can understand the operational mechanism of active judicature in practice, as well as many problems that violate the concept of the rule of law in the course of judicial practice.
Chapter three is the deep-seated analysis of the active judicial policy. This chapter summarizes the problems in the practical operation of the active judicial policy as two points: one is the problem of the policy itself; the other is the objective environment of the policy operation. The objective environment of policy operation can be summarized as passive response to reality and active catering to political characteristics as well as the mismatch between active judicial policy and contemporary China's rule of law. The reasons why problems arise in practice.
Chapter Four: De-administration of Active Justice: The Way of Restraint. This chapter attempts to seek the "de-administration" of Active Justice from the perspective of system, which can be translated into the question of what kind of judicial posture China should adopt under the premise that the rule of law is in its primary stage. The law method and evidence system regulate the "initiative".
【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】：D926
本文编号：2225138
[Abstract]:Judicial reform has gone through more than 20 years if the initial stage of judicial reform is traced back to the opening of the prelude to the reform of civil trial methods. Active judicature is an inevitable choice for the people's courts to serve the overall economic and social development in the new situation. Judicial work serves the overall situation of economic and social development and provides a strong judicial guarantee for the sound and rapid development of the economy and society. A serious interpretation and evaluation is a reflection on China's judicial situation. Active justice has been in operation in China's judicial practice for more than a year and a half. Both in theory and in practice, it has presented a comprehensive picture of the policy. It is not difficult to see, or to see, the problems that appear or are implied in the vigorous judicial movement of the national court system. It is likely that the result of judicial reform for many years will be lost.
This article is divided into four chapters. The basic structure is as follows:
The first chapter is the origin and connotation of active justice. Firstly, it defines active justice, and points out that the active justice discussed in this paper is an active concept in the sense of contemporary China's judicial policy, which is different from the passivity of judicature and judicial activism. Secondly, it discusses the proposition of active justice and its background, and analyzes the work. In order to explain why the active judicature of the political judicature idea came into being in the present stage of the judicial reform and why it came into being instead of other ideas, this paper makes a deep-seated inquiry into its connotation combined with the background of the active judicature and refutes some theories of the active judicature on the basis of it. How can active justice arise and its implications?
Chapter two, the operation and practice of active justice, focuses on the analysis of the operation of active judicial policy in practice. Firstly, the operation mechanism of active justice in practice is explored, pointing out that the policy operation mechanism of the interaction between the Supreme Court and the local courts is the key to ensure the operation of active judicial policy; secondly, the active judicial policy in the courts. Through this chapter, we can understand the operational mechanism of active judicature in practice, as well as many problems that violate the concept of the rule of law in the course of judicial practice.
Chapter three is the deep-seated analysis of the active judicial policy. This chapter summarizes the problems in the practical operation of the active judicial policy as two points: one is the problem of the policy itself; the other is the objective environment of the policy operation. The objective environment of policy operation can be summarized as passive response to reality and active catering to political characteristics as well as the mismatch between active judicial policy and contemporary China's rule of law. The reasons why problems arise in practice.
Chapter Four: De-administration of Active Justice: The Way of Restraint. This chapter attempts to seek the "de-administration" of Active Justice from the perspective of system, which can be translated into the question of what kind of judicial posture China should adopt under the premise that the rule of law is in its primary stage. The law method and evidence system regulate the "initiative".
【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】：D926
【引证文献】
相关硕士学位论文 前1条
1 崔规定;中国语境下“能动司法”的理论分析[D];吉林大学;2012年
，本文编号：2225138
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