能动司法视野下权利的司法生成

发布时间：2019-04-13 09:55

【摘要】：法律规范对公民权利的保障具有广泛性和权威性,但是囿于自身的确定性、抽象性、语言歧义以及法律漏洞等缺陷的存在,在法律规范之外存在一个未被法律囊括在内的权利世界。通过司法程序给予这些法律尚未保护的利益以确认和保护,从一定程度上来说便是通过司法生成了权利,而这一形成的过程即是所谓的权利司法生成。权利的司法生成有利于弥补法律规范的不足、推动立法的发展和完善、及时解决冲突和纠纷还可以更好地保护人权。两大法系由于法律制度的不同,权利司法生成的历史发展也不尽相同：英美法系国家,以英国为代表的法官造法通过判例使法院成为维护个人基本权利的保护者,以美国为代表的司法审查制度带来了美国的“权利大爆炸”；大陆法系国家,比如法国、德国,在发展过程中逐渐接受了通过法院判例弥补法律不足这一现象,瑞士更是有专门的法律规定,在法律无相应规定和惯例时,法官依据自己作为立法人所提出的规则裁判。我国目前欠缺权利司法生成的明确规定,但是在实践中却客观存在,在两大法系彼此趋同的背景下,考察两大法系的相关制度,结合我国的历史和现实,总结和学习国外成功的经验具有重大的理论意义和现实意义。我国正处于社会转型时期,社会矛盾冲突不断,及时有效地调整社会纠纷、保护公民的正当权益,完善当代中国权利司法生成的机制就成为一个值得研究的问题。至于该如何完善,可以从以下几个方面考虑：界定纠纷的可诉范围,将诉的利益作为纠纷可诉性的标准,扩大可诉利益范围,赋予正当利益通过司法程序获得救济的能力；其次确立司法最终解决原则,即所有涉及个人自由、财产、隐私甚至生命的事项,不论是属于程序性的还是实体性的,都必须通过司法机构作出裁判,而且这种裁判具有最终的权威性；第三,明确权利推定原则,也就是以法律明示权利或与之相关的法律原则、立法精神与宗旨的依据,推定出“默示权利”及其他应有权利的存在并确认其合法性的过程；最后,引进判例制度,赋予《最高人民法院公报》上典型案例指导地位,发挥最高人民法院的案例指导功能。
[Abstract]:The protection of civil rights by legal norms is extensive and authoritative, but it is limited by its own shortcomings such as certainty, abstractness, linguistic ambiguity and legal loopholes, etc. There is a world of rights beyond legal norms that is not covered by law. To confirm and protect the unprotected interests of these laws through the judicial process, to a certain extent, the right is generated through the judiciary, and this process of formation is the so-called judicial generation of rights. The judicial generation of rights is helpful to make up for the deficiency of legal norms, promote the development and perfection of legislation, resolve conflicts and disputes in time, and better protect human rights. Because of the difference of legal system between the two legal systems, the historical development of the judicial generation of rights is different: in the Anglo-American law system countries, the judge-making law represented by the United Kingdom has made the court the protector of the individual's basic rights through the case law. The system of judicial review, represented by the United States, brought about the "Big Bang of Rights" in the United States; Civil law countries, such as France and Germany, have gradually accepted, in the course of their development, the phenomenon of making up for the lack of law through court jurisprudence, and Switzerland has special legal provisions, when there are no corresponding provisions and practices in the law. The judge judges on the basis of the rules proposed by the judge as a legislator. At present, there is no clear stipulation of the generation of the right judicature in our country, but it exists objectively in practice. Under the background of the convergence of the two legal systems, the relevant systems of the two legal systems are examined, combining with the history and reality of our country. It is of great theoretical and practical significance to sum up and learn the successful experience of foreign countries. China is in a period of social transformation, social contradictions and conflicts continue, timely and effective adjustment of social disputes, protection of the legitimate rights and interests of citizens, perfect the generation of judicial mechanism of rights in contemporary China has become a question worth studying. As to how to improve, we can consider the following aspects: defining the scope of litigation of disputes, taking the interest of litigation as the standard of litigability of disputes, expanding the scope of actionable interests, and giving the legitimate interests the ability to obtain relief through the judicial process; Secondly, establish the principle of judicial final settlement, that is, all matters involving personal freedom, property, privacy and even life, be they procedural or substantive, must be adjudicated through a judicial body. And this kind of adjudication has the final authority; Thirdly, make clear the principle of presumption of right, that is, according to the law express right or related legal principle, the basis of legislative spirit and purpose, we can deduce the existence of "implied right" and other due rights and confirm its legitimacy; Finally, the case law system is introduced to give guidance status to the typical cases in the Gazette of the Supreme people's Court, and give full play to the function of the case guidance of the Supreme people's Court.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926

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