司法审判对银行利息的裁判
发布时间：2019-03-06 19:39
【摘要】：人民法院作为司法机关,执掌审判权,通过对民事纠纷的审理,以查明案件事实,通过准确适用法律,实现调处纠纷以化解矛盾。对于大多数民事案件的结案,人民法院应当制作民事法律文书,最常见的莫过于调解书与判决书。其中,调解书主要体现当事人之间的自由意志；判决书则更多体现的是国家意志或立法意愿。经过审理程序后,法官的工作成果集中在判决书的主项上。判决书主项是一份判决文书的核心或关键所在,若判决主项论证错误或言辞存在瑕疵,其所产生的影响将非常深远,甚至会形成错误的范例,引起效仿,故法官对判决主项应当论述严谨,言辞精准。 当前,在审判实务中,一些判决文书,特别是针对银行利息的判决书,其论证和表述很不统一,不仅不同法院之间存在差异,甚至同一个法院的不同法官对此问题也存在不同的理解。比如：对逾期罚息该如何表述、复利是否应当受保护、复利又该怎样保护……等等很多问题的认识分歧较多,裁判文书的表述也各不相同,而这些分歧和凌乱,均有损法律文书的公示性、严肃性和规范性。此外,有的法官不认可中国人民银行关于利率、利息的规定；有的法官在审理此类案件时,没有理解私法自治、合同自由的基本民事法律原则；还有的法官没有从立法目的的高度理解最高人民法院对银行利率方面的批复和解释等等。以上的认识分歧和处理差异,造成人民法院在法律文书上有关罚息、复利的表述不规范、不统一,判决文书很容易损害银行作为一方诉讼主体的合法权益,导致当事人间的诉求严重失衡。 为纠正人民法院对上述认识的错误理解,引导对利息问题进行正确裁判,我们不能单纯地就法条论法律,而应当跳出单一法律文件的框架,综合审度立法有关利息问题的目的,甚至可以借鉴它山之石。利息本是投资学、货币学上的概念,所以,在实务审判中为更好地认识银行利息,合法、准确地对案件进行裁量,本文将从货币、投资等学科出发,并运用法学理论,通过法律分析方法,为利息问题的正当裁量寻找一条更为科学的依据。
[Abstract]:As a judicial organ, the people's court is in charge of the judicial power, through the trial of civil disputes, in order to find out the facts of the case, through the accurate application of the law, to achieve mediation disputes to resolve conflicts. For the conclusion of most civil cases, the people's court should make civil legal documents, the most common one is mediation and judgment. The mediation statement mainly embodies the free will between the parties, while the judgment more embodies the will of the state or the legislative will. After the proceedings, the results of the judges' work focused on the main items of the judgement. The subject item of a judgment is the core or key of a judgment instrument, and if the judgment subject item is proved wrong or the words are flawed, its impact will be far-reaching, and it will even form a wrong example, which will lead to imitation. Therefore, the judge should be strict on the subject of the judgment, precise words. At present, in trial practice, some adjudication instruments, especially those dealing with bank interest, are not uniform in their argumentation and presentation, and there are not only differences between different courts. Even different judges in the same court have a different understanding of the issue. For example: how to express the late penalty interest, whether the compound interest should be protected, and how to protect the compound interest. There are many differences in understanding and the expressions of adjudicative documents are different, and these differences and disarray are detrimental to the publicity, seriousness and standardization of legal instruments. In addition, some judges do not approve the provisions of the people's Bank of China on interest rates and interest rates, and some judges do not understand the basic civil legal principles of autonomy of private law and freedom of contract when hearing such cases. Other judges did not understand the Supreme people's Court's approval and interpretation of bank interest rates from the point of view of legislative purpose. The above differences in understanding and handling of differences have caused the people's courts to express non-standard and inconsistent expressions of fines and interest and compound interest in legal documents, and the adjudication documents can easily damage the legitimate rights and interests of banks as the subject of one-party litigation. Leading to a serious imbalance between the claims of the parties. In order to correct the people's court's erroneous understanding of the above-mentioned understanding and guide the correct adjudication of interest issues, we should not simply discuss the law on legal provisions, but should go beyond the framework of a single legal document and comprehensively examine the purpose of legislation on interest issues. It can even be used for reference. Interest is the concept of investment science and moneology, so, in order to better understand bank interest, legal and accurate in the practical trial, this paper will start from the subject of money, investment and so on, and apply the theory of law, in order to get a better understanding of bank interest, legality and accuracy of the case. Through the method of legal analysis, to find a more scientific basis for the legitimate discretion of interest.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.2
本文编号：2435835
[Abstract]:As a judicial organ, the people's court is in charge of the judicial power, through the trial of civil disputes, in order to find out the facts of the case, through the accurate application of the law, to achieve mediation disputes to resolve conflicts. For the conclusion of most civil cases, the people's court should make civil legal documents, the most common one is mediation and judgment. The mediation statement mainly embodies the free will between the parties, while the judgment more embodies the will of the state or the legislative will. After the proceedings, the results of the judges' work focused on the main items of the judgement. The subject item of a judgment is the core or key of a judgment instrument, and if the judgment subject item is proved wrong or the words are flawed, its impact will be far-reaching, and it will even form a wrong example, which will lead to imitation. Therefore, the judge should be strict on the subject of the judgment, precise words. At present, in trial practice, some adjudication instruments, especially those dealing with bank interest, are not uniform in their argumentation and presentation, and there are not only differences between different courts. Even different judges in the same court have a different understanding of the issue. For example: how to express the late penalty interest, whether the compound interest should be protected, and how to protect the compound interest. There are many differences in understanding and the expressions of adjudicative documents are different, and these differences and disarray are detrimental to the publicity, seriousness and standardization of legal instruments. In addition, some judges do not approve the provisions of the people's Bank of China on interest rates and interest rates, and some judges do not understand the basic civil legal principles of autonomy of private law and freedom of contract when hearing such cases. Other judges did not understand the Supreme people's Court's approval and interpretation of bank interest rates from the point of view of legislative purpose. The above differences in understanding and handling of differences have caused the people's courts to express non-standard and inconsistent expressions of fines and interest and compound interest in legal documents, and the adjudication documents can easily damage the legitimate rights and interests of banks as the subject of one-party litigation. Leading to a serious imbalance between the claims of the parties. In order to correct the people's court's erroneous understanding of the above-mentioned understanding and guide the correct adjudication of interest issues, we should not simply discuss the law on legal provisions, but should go beyond the framework of a single legal document and comprehensively examine the purpose of legislation on interest issues. It can even be used for reference. Interest is the concept of investment science and moneology, so, in order to better understand bank interest, legal and accurate in the practical trial, this paper will start from the subject of money, investment and so on, and apply the theory of law, in order to get a better understanding of bank interest, legality and accuracy of the case. Through the method of legal analysis, to find a more scientific basis for the legitimate discretion of interest.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.2
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