司法与民意的碰撞及融合研究
发布时间：2018-10-10 15:30
【摘要】：在民众权利意识和法律意识高涨的时代里,面对侵袭而来的民意,司法实践往往不知如何应对。对于民意能否介入司法,以及司法如何对民意做出回应,学界和实务界的讨论十分热烈。此问题能否妥善解决,关系到对民主权利的尊重和司法权威的维护,更与民主司法及科学执政息息相关。当前甚为必要的是对司法与民意的碰撞及融合进行研究,探讨司法回应民意的制度化途径。 所谓制度化,即探讨的途径和方式不再限于单个或单类型案件的解析或归纳整理,而是立足于更为深层次的基础和更为高远的立意,将纷繁复杂的民意与司法的互动用一定方式以一定的标准加以梳理,以期寻求在司法回应民意之时,就是否回应以及如何回应,能够事先在内心形成可供指导的先期观念。 民意是特定范围内的社会公众对于特定事项在其认可的价值观的指引下所形成的内心倾向,通常外化表现为一定的支持或者反对的行为。诸如司法机关对依法审判的原则贯彻落实不到位,法律的固有缺陷导致的个案不公和司法过程因其复杂性和专业性而不被公众理解以及司法过程的不公开、不透明等原因都容易导致民意的产生。民意具有自发性、不确定性、可引导性和相对决定性等特征,决定了民意渗入司法时所应当遵循的谨慎性。通过分析民意对司法施加影响的积极作用和消极作用以及司法回应民意的价值,并结合司法的自身规律中所包含的司法裁判的形成过程,可以发现民意进入司法具有相当程度的正当性。司法需要对民意做出回应。但是,这种回应必须遵循一定的实体法和程序法限度,除需要符合一定的基本原则约束外,还应当通过正当性的途径并按照制度化的程序机制进行。 程序和实体的融合为刑法立法及司法过程中必须的要求,一方面,此种融合保障了司法判决的结果能够符合实体法上的构成要件以及法律效果；另一方面,独立的程序价值追求,也在一定程度上能够缓解民众对于司法裁判程序、依据和独立价值的陌生,回应民众就司法裁判以及判决结果的诉请。
[Abstract]:In the era of people's awareness of rights and law, the judicial practice often does not know how to deal with the attack of public opinion. There has been a heated discussion on whether public opinion can intervene in the judiciary and how the judiciary can respond to public opinion. Whether this problem can be properly solved is related to the respect for democratic rights and the maintenance of judicial authority, and is closely related to democratic judicature and scientific governance. At present, it is necessary to study the collision and fusion of judicature and public opinion, and to explore the way of institutionalizing judicial response to public opinion. The so-called institutionalization means that the ways and means of exploration are no longer limited to the analysis or induction of individual or single-type cases, but are based on a deeper foundation and a higher idea. Combing the complicated interaction between public opinion and judicature in a certain way with a certain standard, in order to seek judicial response to public opinion, whether and how to respond, can be formed in advance in the heart for guidance. Public opinion is the inner tendency formed by the public in a specific scope under the guidance of its approved values. It is usually expressed as an act of support or opposition. Such as the lack of implementation by the judiciary of the principle of trial in accordance with the law, the unfair nature of cases and judicial processes resulting from inherent flaws in the law and the lack of public understanding of the judicial process due to its complexity and professionalism, as well as the closed nature of the judicial process, Opacity and other reasons are easy to lead to the generation of public opinion. Public opinion has the characteristics of spontaneity, uncertainty, guidance and relative determinacy, which determines the caution that should be followed when public opinion infiltrates the judiciary. By analyzing the positive and negative influence of public opinion on justice and the value of judicial response to public opinion, and combining the formation process of judicial decision contained in the law of judicature itself, It can be found that public opinion access to justice has a considerable degree of legitimacy. The judiciary needs to respond to public opinion. However, this kind of response must follow certain substantive law and procedural law limit, in addition to the need to conform to certain basic principles, it should also be carried out through the way of legitimacy and according to the institutionalized procedural mechanism. The integration of procedure and entity is a necessary requirement in criminal law legislation and judicial process. On the one hand, it guarantees that the result of judicial decision can conform to the constitutive elements of substantive law and the legal effect; on the other hand, To some extent, the pursuit of independent procedural value can alleviate the strangers of judicial procedure, basis and independent value, and respond to the appeal of the public on the judicial decision and the result of the judgment.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.2
本文编号：2262304
[Abstract]:In the era of people's awareness of rights and law, the judicial practice often does not know how to deal with the attack of public opinion. There has been a heated discussion on whether public opinion can intervene in the judiciary and how the judiciary can respond to public opinion. Whether this problem can be properly solved is related to the respect for democratic rights and the maintenance of judicial authority, and is closely related to democratic judicature and scientific governance. At present, it is necessary to study the collision and fusion of judicature and public opinion, and to explore the way of institutionalizing judicial response to public opinion. The so-called institutionalization means that the ways and means of exploration are no longer limited to the analysis or induction of individual or single-type cases, but are based on a deeper foundation and a higher idea. Combing the complicated interaction between public opinion and judicature in a certain way with a certain standard, in order to seek judicial response to public opinion, whether and how to respond, can be formed in advance in the heart for guidance. Public opinion is the inner tendency formed by the public in a specific scope under the guidance of its approved values. It is usually expressed as an act of support or opposition. Such as the lack of implementation by the judiciary of the principle of trial in accordance with the law, the unfair nature of cases and judicial processes resulting from inherent flaws in the law and the lack of public understanding of the judicial process due to its complexity and professionalism, as well as the closed nature of the judicial process, Opacity and other reasons are easy to lead to the generation of public opinion. Public opinion has the characteristics of spontaneity, uncertainty, guidance and relative determinacy, which determines the caution that should be followed when public opinion infiltrates the judiciary. By analyzing the positive and negative influence of public opinion on justice and the value of judicial response to public opinion, and combining the formation process of judicial decision contained in the law of judicature itself, It can be found that public opinion access to justice has a considerable degree of legitimacy. The judiciary needs to respond to public opinion. However, this kind of response must follow certain substantive law and procedural law limit, in addition to the need to conform to certain basic principles, it should also be carried out through the way of legitimacy and according to the institutionalized procedural mechanism. The integration of procedure and entity is a necessary requirement in criminal law legislation and judicial process. On the one hand, it guarantees that the result of judicial decision can conform to the constitutive elements of substantive law and the legal effect; on the other hand, To some extent, the pursuit of independent procedural value can alleviate the strangers of judicial procedure, basis and independent value, and respond to the appeal of the public on the judicial decision and the result of the judgment.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.2
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