【作者】 林兵；

【导师】 杜宴林；

【作者基本信息】 吉林大学 ， 法学理论， 2008， 硕士

【摘要】 民意与司法公正之间的关系是社会主义法制建设中一个重要而又敏感的问题。民意作为实现社会公正的手段之一,不可避免地与司法公正发生冲突。对此问题,本文从民意与司法公正的基础理论入手明确民意是一种民主基础上的社会多数人意志的理性表达,是反映民众最根本利益的追求。而司法公正是司法的首要价值追求,是司法活动的目的,其本身包括实体公正和程序公正。本文在简述两者冲突表现时,进一步分析了冲突产生的原因。受我国国情影响司法公正不能完全抛弃民意,因此在建立以公正为根本取向的现代司法理念的基础上,借鉴西方国家的司法实践,寻找民意与司法公正的协调模式,提出在中国当代社会背景下构建具有中国特色的民意与司法公正的平衡制度。更多还原

【Abstract】 With the advancement of judicial reform in China, the controversy between popular will and judicial justice is becoming more and more fierce, which has already gained public concern. To make things worse, the administration of justice has usually been interrupted by popular will greatly. On the one hand, as the primary value the administration of justice has to pursue, judicial justice is an essential component of social justice. On the other hand, popular will tends to bring about both positive and negative effects in that it can not only advance judicial justice, but also do damage to it. Consequently, achieving a balance between popular will and judicial justice is of great importance to the peace of our society. As for China, which is developing its rule of law, it is necessary for us to hold a neutral view on the relationship between popular will and judicial justice. This means that the administration of justice should keep a certain distance from popular will, instead of completely being independent of it. Above all, it is true that we should keep both sides in harmony. Concentrating on such arguments, this dissertation consists of four chapters.The first chapter discusses the basic theory of popular will and judicial justice. On the one hand, the author analyzes the conception of popular will, which means a rational expression of the will of the majority in a democratic society. And we could characterize popular will as something democratic, scientific and social. In addition, it is also a kind of supervisory system. The characteristic of popular will makes it different from public opinion. On the other hand, judicial justice is the primary value the administration of justice has to pursue. It is also the combination of procedure justice and substantial justice, and the most important means to protect the people and to achieve social justice. The profound effect popular will has on judicial justice is that it is able to restrict the executive power from interrupting the administration of justice, to ensure the independence of justice, and eventually to advance judicial justice.The second chapter contrives to inquire the controversy between popular will and judicial justice. To begin with, the author comes to a conclusion that popular will may be obscured and appears to be false when it is forced.Secondly, the author holds the view that the controversy between popular will and judicial justice manifests itself as the controversy between popular will and judicial independence, the controversy between facts settled by popular will and legal facts, and the controversy between popular will and the method of judicial justice. Finally, in order to harmonize such controversies, we should find out the reasons between this phenomenon. And the reasons are as follows: the lacking of the procedure which is ready to adopt popular will, the controversy between law and morality, and the controversy between the right to supervise and the power to administrate.The third chapter concentrates on the harmony between popular will and judicial justice. To look at the relationship between both two sides correctly is of great importance to the achievement of justice and the construction of our country. On the one hand, the impact of popular will on the administration of justice is something traditional for china, as the Chinese tends to worship the combination of law and morality, which have something in common in their ethical grounds. As a result, popular will is capable of playing a fundamental role in the harmonizing of the two sides. On the other hand, the thought of democracy is gaining more and more public concern in our society, which has led the public to realize that it is necessary to cooperate with administrative institutions closely to affect the distribution of interests and duties and to protect their own interests. The experiences and lessons provided by German, British and the USA is also recommended in this chapter, from which we could draw a lot of inspiration in the progress of the legal reform carried out in China.The last chapter endeavors to establish a kind of system which is able to keep popular will and judicial justice in harmony. The most important of all, this system should conform to the guideline of“constructing the harmonious society”. Consequently, we should take three steps to establish such a kind of system. First of all, it is necessary to establish and complete relative systems and widen the scope of popular will. Secondly, the jurors should play an important part in the harmonizing of the two sides. And the duties of the jury and the judge should be distinguished precisely. The last but not the least important, the judges should keep a certain distance from the public. We should place great emphasis on the cultivating of the method of legal thinking. Only in this way, can we keep popular will and judicial justice in harmony.更多还原