司法与民意的关系探究
发布时间：2019-05-18 06:48
【摘要】： 民意是一种社会公众的心理活动,司法代表的则是一种法律实践。司法在一定社会中进行,必须考虑民众社会心理的因素,而民意的表达是影响法律实践的重要方面。所以司法与民意的关系是法学研究的重要领域,对于司法与民意关系的综合研究具有很重要的学术和应用价值。我国法学理论界讨论的司法独立、司法职业化等各项问题都与司法和民意的关系有着千丝万缕的联系。在目前的中国社会,司法与民意之间的紧张关系已经十分突出。在很多案件中民情激愤而司法尴尬。民意作为大众集体心理的一种表现,因其特殊的主体机能而表现出自身的特性。而司法作为一种程序规范,其概念也存在广义与狭义之分。如何认定民意与司法之间的概念?如何认识司法与民意的冲突关系?如何分析司法与民意关系的成因?以及如何在民意与司法之间寻找一条协调重构的路径?这些都成为当下迫切需要解决的问题。对于我们这样一个有着深厚封建传统文化且法治基础薄弱的国家而言,在研究民意与司法关系时,更应当采取一种慎重的态度,妥善处理二者的关系。 围绕以上核心问题,本文主要分三部分对司法与民意的关系进行论述： 第一部分是文章的第一章。这一部分主要是对文章所讨论的话题范围进行界定,同时也对相关概念进行明确。首先在比较分析民意、舆论、舆情的基础上对民意的概念、特征进行了探讨,同时对司法概念的历史发展做了回顾总结,对其特征进行了梳理。这部分主要通过历史纵向比较和国内外横向比较的方法,以期为后文的研究打下基础。 第二部分主要是文章的第二章。介绍了民意和司法关系在我国古代的发展情况和在西方的发展历程。同时分析了民意与司法关系积极促进和相互冲突的具体表现。在此基础上对司法与民意矛盾关系的成因给予理论和现实两方面的阐述。理论上的原因包括价值追求的不同,思维方式的差异,权利与权力监督之间的矛盾,以及目标理念的冲突。现实的原因则包括司法中没有吸纳民意的程序,司法腐败,外来制度与传统文化的对接等等。这部分主要通过辩证分析和案件实例的方式,以期深入理解司法与民意的矛盾关系。 第三部分主要是文章的三章。此部分主要采用理论联系实际的方法,在前文分析的基础上联系实际提出司法与民意协调重构的路径。首先分析了司法与民意协调重构的理论方向,在此基础上提出具体措施,包括通过立法尊重陪审权威以及一系列加强司法独立的具体措施。最后在结语部分笔者指出司法与民意只是殊途同归的表达了对社会正义的追求,二者的本质具有很大相似性。
[Abstract]:Public opinion is a kind of psychological activity of the public, and judicial representative is a kind of legal practice. In order to carry out judicature in a certain society, we must consider the factors of people's social psychology, and the expression of public opinion is an important aspect that affects the practice of law. Therefore, the relationship between justice and public opinion is an important field of legal research, and it has very important academic and applied value for the comprehensive study of the relationship between justice and public opinion. The judicial independence and professionalization discussed in the theoretical circle of law in our country are inextricably related to the relationship between judicature and public opinion. In the current Chinese society, the tension between justice and public opinion has become very prominent. In many cases, the public is angry and the judiciary is embarrassed. As a manifestation of mass collective psychology, public opinion shows its own characteristics because of its special subject function. As a kind of procedural norm, the concept of judicature can be divided into broad sense and narrow sense. How to identify the concept between public opinion and justice? How to understand the conflict between justice and public opinion? How to analyze the causes of the relationship between justice and public opinion? And how to find a way to coordinate and reconstruct between public opinion and justice? These have become urgent problems to be solved at present. For a country with profound feudal traditional culture and weak foundation of rule of law, when studying the relationship between public opinion and justice, we should adopt a cautious attitude and properly deal with the relationship between the two. Around the above core issues, this paper is divided into three parts to discuss the relationship between justice and public opinion: the first part is the first chapter of the article. This part mainly defines the scope of the topic discussed in the article, and also clarifies the related concepts. First of all, on the basis of comparative analysis of public opinion, public opinion and public opinion, this paper probes into the concept and characteristics of public opinion, reviews and summarizes the historical development of judicial concept, and combs its characteristics. This part mainly through the historical longitudinal comparison and the domestic and foreign horizontal comparison method, in order to lay the foundation for the later research. The second part is the second chapter of the article. This paper introduces the development of the relationship between public opinion and judicature in ancient China and the course of development in the West. At the same time, it analyzes the concrete performance of the positive promotion and conflict between public opinion and judicature. On this basis, the causes of the contradiction between justice and public opinion are expounded theoretically and realistically. The theoretical reasons include the difference of value pursuit, the difference of thinking mode, the contradiction between right and power supervision, and the conflict of goal idea. The realistic reasons include the lack of public opinion in the judiciary, judicial corruption, the docking of foreign systems and traditional culture, and so on. This part mainly through dialectical analysis and case examples, in order to deeply understand the contradictory relationship between justice and public opinion. The third part is mainly the three chapters of the article. This part mainly uses the method of combining theory with practice, and puts forward the path of judicial and public opinion coordination and reconstruction on the basis of the above analysis. First of all, this paper analyzes the theoretical direction of the coordination and reconstruction of justice and public opinion, and puts forward some concrete measures, including respecting the authority of the jury through legislation and a series of concrete measures to strengthen the independence of the judiciary. Finally, in the conclusion part, the author points out that justice and public opinion only express the pursuit of social justice in the same way, and the essence of the two is very similar.
【学位授予单位】：陕西师范大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D926
本文编号：2479767
[Abstract]:Public opinion is a kind of psychological activity of the public, and judicial representative is a kind of legal practice. In order to carry out judicature in a certain society, we must consider the factors of people's social psychology, and the expression of public opinion is an important aspect that affects the practice of law. Therefore, the relationship between justice and public opinion is an important field of legal research, and it has very important academic and applied value for the comprehensive study of the relationship between justice and public opinion. The judicial independence and professionalization discussed in the theoretical circle of law in our country are inextricably related to the relationship between judicature and public opinion. In the current Chinese society, the tension between justice and public opinion has become very prominent. In many cases, the public is angry and the judiciary is embarrassed. As a manifestation of mass collective psychology, public opinion shows its own characteristics because of its special subject function. As a kind of procedural norm, the concept of judicature can be divided into broad sense and narrow sense. How to identify the concept between public opinion and justice? How to understand the conflict between justice and public opinion? How to analyze the causes of the relationship between justice and public opinion? And how to find a way to coordinate and reconstruct between public opinion and justice? These have become urgent problems to be solved at present. For a country with profound feudal traditional culture and weak foundation of rule of law, when studying the relationship between public opinion and justice, we should adopt a cautious attitude and properly deal with the relationship between the two. Around the above core issues, this paper is divided into three parts to discuss the relationship between justice and public opinion: the first part is the first chapter of the article. This part mainly defines the scope of the topic discussed in the article, and also clarifies the related concepts. First of all, on the basis of comparative analysis of public opinion, public opinion and public opinion, this paper probes into the concept and characteristics of public opinion, reviews and summarizes the historical development of judicial concept, and combs its characteristics. This part mainly through the historical longitudinal comparison and the domestic and foreign horizontal comparison method, in order to lay the foundation for the later research. The second part is the second chapter of the article. This paper introduces the development of the relationship between public opinion and judicature in ancient China and the course of development in the West. At the same time, it analyzes the concrete performance of the positive promotion and conflict between public opinion and judicature. On this basis, the causes of the contradiction between justice and public opinion are expounded theoretically and realistically. The theoretical reasons include the difference of value pursuit, the difference of thinking mode, the contradiction between right and power supervision, and the conflict of goal idea. The realistic reasons include the lack of public opinion in the judiciary, judicial corruption, the docking of foreign systems and traditional culture, and so on. This part mainly through dialectical analysis and case examples, in order to deeply understand the contradictory relationship between justice and public opinion. The third part is mainly the three chapters of the article. This part mainly uses the method of combining theory with practice, and puts forward the path of judicial and public opinion coordination and reconstruction on the basis of the above analysis. First of all, this paper analyzes the theoretical direction of the coordination and reconstruction of justice and public opinion, and puts forward some concrete measures, including respecting the authority of the jury through legislation and a series of concrete measures to strengthen the independence of the judiciary. Finally, in the conclusion part, the author points out that justice and public opinion only express the pursuit of social justice in the same way, and the essence of the two is very similar.
【学位授予单位】：陕西师范大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D926
【引证文献】
相关硕士学位论文 前6条
1 张洪洋;民意与司法的纠结研究[D];吉林大学;2011年
2 张建松;论民意对审判的影响[D];吉林大学;2012年
3 龙春霞;压力下的独立—民意与司法的冲突与协调[D];华东政法大学;2012年
4 周媛媛;民意与司法的互动关系研究[D];广东商学院;2012年
5 文洋;从唯物史观到合法性[D];上海师范大学;2012年
6 邓兰;论网络民意与司法的良性互动[D];湖南大学;2012年
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