论中国语境中的法官能动性
发布时间：2018-12-13 20:42
【摘要】：社会转型,体制转轨,已经成为我国当下社会经济发展过程中最大的时代特征。在此宏观背景之下,我国的司法改革进程也进入到了一个关键时期。一方面社会主义法律体系已然构建完成,而另一方面我国法治发展又面临着许多具体问题,司法还不能及时有效地回应社会的需要,司法的权威也未能在社会生活中普遍建立起来。 在当下,全国司法系统竞相开展能动司法活动,从司法体制中的法官制度入手,本文提出,法官应当充分发挥自身的能动性,通过各种方式,在诉讼的不同阶段,及时有效地回应诉讼当事人的司法需求,以弥合当下法治发展不平衡状况下的法治缺陷。通过法官积极、主动的作为,为构建和谐的社会主义司法做出应有的贡献,并为我国法治发展的图景构建提供现实的实践素材。 本论文的结构分为三大章九小节,分别从条件论、本体论、运行论三个方面阐释中国语境下法官能动性为什么,是什么以及如何做的问题,旨在勾勒我国法官能动性发挥的迫切性、现实性和价值性,通过现实构建与纵横比较的方法,分析我国法官能动性发挥的具体措施和原理特征。 第一章是中国语境中法官能动性的条件论。这部分主要从我国法官能动性研究的必要性,应用的可能性以及适用的价值性三个方面入手,分析论证法官能动性发挥在我国当下社会语境中是必要、可能和有价值的,这三方面的条件因素回应了我国司法实践中是否需要法官发挥能动性的问题。 第二章是中国语境中法官能动性的本体论。这部分主要从我国法官能动性的内涵、特色以及定位三个方面入手,以期回答司法实践中法官能动性具体是什么的问题。在构建法官能动性自身内涵和在比较研究中论证法官能动性自身特色的同时,将法官能动性发挥的定位界限清楚阐释,回应当下对于法官能动司法的些许疑惑。 第三章是中国语境中法官能动性的运行论。这部分主要侧重我国法官能动性发挥的具体操作层面,从方法适用、措施保障和实施影响三个方面入手,分析论证我国法官能动性具体如何发挥,以及如何处理与其他相关司法运行机制关系影响问题。其目的是为了做好预期分析,让法官能动性的发挥更加现实、明晰、易操作,从而使其能够发挥预期的效果,实现自身的价值。 总体而言,在当下的中国语境中,法官能动性的发挥不仅有利于我国司法体制改革的深入发展,而且对于“主体性中国”的法律理想图景构建具有着建设性作用。因此,细致分析法官能动性的作用价值,深入挖掘法官能动性的内涵特征,认真研究法官能动性的方法措施,对于我国法治的向前发展具有着重大意义,这也是本文的主旨所在。
[Abstract]:Social transformation and institutional transformation have become the greatest characteristics of our country in the process of social and economic development. In this macro-background, China's judicial reform process has entered a critical period. On the one hand, the construction of socialist legal system has been completed, and on the other hand, the development of the rule of law in our country is facing many specific problems, and the judiciary has not been able to respond to the needs of the society in a timely and effective manner. Judicial authority has not been established in general in social life. At present, the national judicial system competes to carry out the active judicial activities, starting from the judge system in the judicial system, this paper puts forward that judges should give full play to their own initiative, through various ways, in different stages of litigation. Timely and effectively respond to the judicial needs of litigants in order to bridge the defects of the rule of law in the current unbalanced development of the rule of law. Through the positive and active actions of judges, we should make due contributions to the construction of harmonious socialist justice, and provide practical material for the construction of the prospect of the development of our country's rule of law. The structure of this paper is divided into three chapters and nine sections, explaining why, what and how to do judges' initiative in Chinese context from three aspects: condition theory, ontology and operation theory. The purpose of this paper is to outline the urgency, reality and value of the judges' initiative in our country, and to analyze the concrete measures and principle characteristics of the exertion of the judges' initiative through the method of realistic construction and vertical and horizontal comparison. The first chapter is the conditional theory of judges' initiative in Chinese context. This part mainly starts with the necessity, the possibility of application and the applicable value of the study of the judges' initiative in our country, and analyzes and proves that it is necessary, possible and valuable for the judge's initiative to play in the current social context of our country. These three factors respond to the question whether judges should play a dynamic role in our judicial practice. The second chapter is the ontology of judges' initiative in Chinese context. This part mainly starts with the connotation, characteristics and orientation of the judges' initiative in our country, in order to answer the question of what the judge's initiative is in judicial practice. While constructing the connotation of judges' initiative and demonstrating the characteristics of judges' initiative in the comparative study, the author clarifies the positioning and boundary of judges' initiative, and responds to the doubts about judges' active judicature at present. The third chapter is the theory of judges' initiative in Chinese context. This part mainly focuses on the specific operational level of our country's judges' initiative, starting from three aspects: the application of methods, the protection of measures and the impact of implementation, and analyzes and demonstrates how to give full play to the dynamic role of judges in our country. And how to deal with the relationship with other related judicial operation mechanism. Its purpose is to do a good job of expected analysis, so that judges can play more realistic, clear and easy to operate, so that they can play the expected effect and realize their own value. In general, in the present Chinese context, the exertion of judges' initiative is not only conducive to the in-depth development of the judicial system reform in China, but also plays a constructive role in the construction of the legal ideal prospect of "subjective China". Therefore, it is of great significance for the development of the rule of law in our country to analyze the function value of judges' initiative, to dig into the connotation characteristics of judges' initiative, and to study seriously the methods and measures of judges' initiative. This is also the thrust of this paper.
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.2
[Abstract]:Social transformation and institutional transformation have become the greatest characteristics of our country in the process of social and economic development. In this macro-background, China's judicial reform process has entered a critical period. On the one hand, the construction of socialist legal system has been completed, and on the other hand, the development of the rule of law in our country is facing many specific problems, and the judiciary has not been able to respond to the needs of the society in a timely and effective manner. Judicial authority has not been established in general in social life. At present, the national judicial system competes to carry out the active judicial activities, starting from the judge system in the judicial system, this paper puts forward that judges should give full play to their own initiative, through various ways, in different stages of litigation. Timely and effectively respond to the judicial needs of litigants in order to bridge the defects of the rule of law in the current unbalanced development of the rule of law. Through the positive and active actions of judges, we should make due contributions to the construction of harmonious socialist justice, and provide practical material for the construction of the prospect of the development of our country's rule of law. The structure of this paper is divided into three chapters and nine sections, explaining why, what and how to do judges' initiative in Chinese context from three aspects: condition theory, ontology and operation theory. The purpose of this paper is to outline the urgency, reality and value of the judges' initiative in our country, and to analyze the concrete measures and principle characteristics of the exertion of the judges' initiative through the method of realistic construction and vertical and horizontal comparison. The first chapter is the conditional theory of judges' initiative in Chinese context. This part mainly starts with the necessity, the possibility of application and the applicable value of the study of the judges' initiative in our country, and analyzes and proves that it is necessary, possible and valuable for the judge's initiative to play in the current social context of our country. These three factors respond to the question whether judges should play a dynamic role in our judicial practice. The second chapter is the ontology of judges' initiative in Chinese context. This part mainly starts with the connotation, characteristics and orientation of the judges' initiative in our country, in order to answer the question of what the judge's initiative is in judicial practice. While constructing the connotation of judges' initiative and demonstrating the characteristics of judges' initiative in the comparative study, the author clarifies the positioning and boundary of judges' initiative, and responds to the doubts about judges' active judicature at present. The third chapter is the theory of judges' initiative in Chinese context. This part mainly focuses on the specific operational level of our country's judges' initiative, starting from three aspects: the application of methods, the protection of measures and the impact of implementation, and analyzes and demonstrates how to give full play to the dynamic role of judges in our country. And how to deal with the relationship with other related judicial operation mechanism. Its purpose is to do a good job of expected analysis, so that judges can play more realistic, clear and easy to operate, so that they can play the expected effect and realize their own value. In general, in the present Chinese context, the exertion of judges' initiative is not only conducive to the in-depth development of the judicial system reform in China, but also plays a constructive role in the construction of the legal ideal prospect of "subjective China". Therefore, it is of great significance for the development of the rule of law in our country to analyze the function value of judges' initiative, to dig into the connotation characteristics of judges' initiative, and to study seriously the methods and measures of judges' initiative. This is also the thrust of this paper.
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.2
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