“许霆案”争论的法哲学思考法律(法学)专业论文.docxVIP

Ⅱ Ⅱ Abstract This paper attempts to explore debate of Xu case from the legal philosophical perspective. After brief introduction of the Xu case and the main argument on it, this paper puts forward on criminal law, civil law and public morality stance scholar’s different viewpoints is mainly due to the difference of values and thinking of position, ultimately, it could make possible consensus by “the higher platform”, legal philosophy that study “law should be” through “building a bridge. Xu case the nature of law applies for to Xu type withdrawals behavior consciousness of social damage struggle, to this, we shall hold a value relativism position in applicable criminal law, the basis of convicted mitigated punishment. For Xu case argument for theft, we should realize the criminal, civil society function is different, and in order to achieve the laws social security function (in Xu case should be higher than law encourages function of trade), in Xu case should choose from criminal law in starting position to consider the nature of ATM machine, its as the thing, not as the electronic agent, so Xu type withdrawals behavior shall constitute stealing. Actually, Xu case is in the countrys economic and technology rapid development, intelligent system is widely spread occurred under the background of the new era of intelligence, is not up-to-date.To the development step, a challenge law reflects legal hysteresis. Academic discussion can make us realize this question, and how to solve this problem to make some theoretical proposal, would eventually let backward laws keep abreast with the pace of development and reflect true opinion, and give Xu type withdrawals behavior an appropriate legal punishment, and still have to depend on legislative power to change. Key Words: Xu Case; Laws Application; Value Relativism; Public Trial Opinion; Law Lagging Ⅲ Ⅲ 目录 HYPERLINK \l _bookmark0 引 言 1 HYPERLINK \l _bookmark1 第 1 章 “许霆案”的简要介绍 2 HYPERLINK \l _bookmark2 1.1 案件基本事实 2 HYPERLIN