法官自由裁量的规范和运作

发布时间：2018-12-17 23:44

【摘要】：在法官审理案件的过程中,法律规范的内容与案件事实不可能是对应的关系,法律的模糊性、不周延性、滞后性使法官的自由裁量应运而生。尽管我国目前尚未有明确规定法官自由裁量的法律条文,但是立法者在诸多法律条文中都设置了裁量的余地和空间,进而使几乎每一位法官在在处理每一起案件时都会运用到自由裁量。其实,建国以来的以“司法人民性”和“法律职业化”为代表的两次不同方向的司法改革,及其在改革中暴露出的诸多问题,其实质是法官自由裁量范围的扩张与限制问题,因此法官自由裁量成为法学理论界重点关注和思考的问题。当前,新一轮司法改革已经启动,“司法人民性”的以新的姿态重新回归,司法人民性的深刻内涵可以视为是对法官自由裁量有益的指导和规范。本文以司法人民性为研究视角,将对法官自由裁量内涵的思考与司法人民性联系起来,阐释司法人民性中蕴含的若干精神与法官自由裁量之间的良性互动,由此揭示法官自由裁量的界限和实践运作皆应受到司法人民性的影响,进而分析如何运用司法人民性的要求去引导和规范法官的自由裁量,提出法官自由裁量必须以司法人民性为追求,充分重视对人民性要求的回应,法官自由裁量的合理运作最终建立在对司法人民性的理性认识和运用之上。
[Abstract]:In the process of judge hearing cases, the content of legal norms and the facts of the case can not be the corresponding relationship, the fuzziness of the law, the inconsiderate ductility, the lag nature makes the judge's discretion emerge as the times require. Although there are no legal provisions in our country that clearly stipulate the discretion of judges, legislators have set up the margin and space of discretion in many legal provisions. This in turn makes it possible for almost every judge to exercise discretion in handling every case. In fact, since the founding of the people's Republic of China, the two judicial reforms in different directions, represented by "judicial people's character" and "legal professionalization", and many problems exposed in the reform, are essentially the expansion and limitation of the scope of judges' discretion. Therefore, the discretion of judges has become the focus of attention and thinking in the field of legal theory. At present, a new round of judicial reform has been started, "judicial people" with a new attitude to return, the profound connotation of judicial people can be regarded as a beneficial guide and norms for the discretion of judges. From the perspective of judicial people, this paper links the connotation of judge discretion with judicial people, and explains the positive interaction between the spirit contained in judicial people and the judge discretion. Therefore, it is revealed that the limits and practical operation of the judge's discretion should be influenced by the judicial people's character, and how to use the judicial people's request to guide and standardize the judge's discretion is analyzed. It is proposed that the judge's discretion must be pursued by the judicial people and pay full attention to the response to the request of the people. The rational operation of the judge's discretion is ultimately based on the rational understanding and application of the judicial people's nature.
【学位授予单位】：广西大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D926.2

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