法社会学视野下的中国优秀法官

发布时间：2018-02-15 00:59

本文关键词： 优秀法官司法改革法官职业化　出处：《山东大学》2012年硕士论文　论文类型：学位论文

【摘要】：自2003年中国首届“法官十杰”评选活动举办以来,全国各地通过各种评选和宣传活动一共产生了宋鱼水、吴萍等数十位国家优秀法官。在此之后,各个省市地方也组织了优秀法官的评选活动。顾名思义,优秀法官是法院系统各个法官学习的楷模,其工作模式也是各级法官效仿和学习的典型。优秀法官评选也构成了全国上下各类英模人物评选活动的一部分。然而,对于优秀法官评选目前学术界鲜有富有价值的学术探索,本文试图寻求突破。文章分为五部分。优秀法官评选活动分为评选和宣传两个阶段,文章第一部分从社会变迁的角度回顾了优秀法官评选宣传的历史与发展脉络。分析了优秀法官马锡五和新时期的优秀法官评选和宣传的方式和渠道。第二部分对优秀法官评选活动原因展开文化、经济、政治和管理等多元分析。传统儒家文化“德治”和“人皆可为尧舜”的因素为优秀法官评选活动提供了土壤；优秀法官评选也是传统中国官僚治理模式的延续,优秀法官身上所体现的意识形态构成了新制度经济学意义上的非制度约束,具有经济功能；优秀法官也是国家对官僚科层法官队伍进行管理,形成激励机制的一种方式,其活动也构成了政法传统下共产党宣传其思想方针的工具。文章的第三部分是对20位全国优秀法官为标本展开分析。分析优秀法官的工作岗位分布、年龄、学历、性别等,力图勾勒出当代中国优秀法官的基本形象、工作模式和工作中的政治底色。针对民庭优秀法官居多,刑庭、执行庭和行政庭优秀法官较少甚至缺位；法官队伍年轻化和高学历；女性法官居多；调节至上、服务大局和一心为民等司法模式,笔者给出了自己的看法。第四部分则是对优秀法官评选活动进行反思。优秀法官工作模式存在着角色多元和角色冲突、过多地依赖人格完美和道德因素的缺陷。并且,优秀法官评选活动也没有到达预期目的,这也说明了缺乏制度配合下意识形态经济功能的局限性,优秀法官人格的完美凸显了司法职业化制度的无力。第五部分承接第四部分,在反思法官工作中的道德因素和政治因素之后,认为法官队伍建设与其依靠道德榜样,不如依赖制度建构和制度规范,当务之急应该推进法官职业化建设,正确处理好司法与执政党领导的关系,总之,司法改革不应该走回头路。
[Abstract]:Since the first "Ten Justices" selection activities were held in China in 2003, dozens of outstanding state judges, including Song Yushui and Wu Ping, have been produced throughout the country through various selection and publicity activities. After that, Various provinces and cities have also organized the selection of outstanding judges. As the name implies, excellent judges are the role models for all judges in the court system. Its working mode is also a typical example for judges at all levels to emulate and learn. The selection of outstanding judges also forms a part of all kinds of English models in the country. However, there are few valuable academic explorations for the selection of outstanding judges in academic circles at present. This paper tries to find a breakthrough. The article is divided into five parts. The selection of outstanding judges is divided into two stages: selection and publicity. The first part of the article reviews the history and development of the selection and publicity of outstanding judges from the perspective of social changes, and analyzes the ways and channels of selecting and propagating outstanding judges in Ma Xiwu and the new period. In the second part, the author analyzes the reasons for the selection of outstanding judges in the aspects of culture, economy, politics and management. The traditional Confucian culture of "rule of virtue" and "people can serve as Yao and Shun" provide the soil for the selection of outstanding judges. The selection of excellent judges is also a continuation of the traditional Chinese bureaucratic governance mode. The ideology embodied by the excellent judges constitutes the non-institutional constraints in the sense of new institutional economics and has economic functions. Excellent judges are also a way for the state to manage the ranks of bureaucratic judges and form an incentive mechanism. Their activities also constitute a tool for the Communist Party to propagate its ideology and policy under the tradition of politics and law. The third part of the article is the analysis of 20 outstanding judges in China. It analyzes the job distribution, age, education and gender of the outstanding judges, and tries to outline the basic image of the outstanding judges in contemporary China. Working mode and political background in the work. Most of the outstanding judges in the civil court, the criminal court, the executive court and the administrative court are few or even absent; the ranks of judges are younger and more educated; the female judges are the majority; the adjustment is paramount; Serve the overall situation and serve the people and other judicial models, the author gives his own views. The 4th part is a reflection on the selection of outstanding judges. The work model of excellent judges has the defects of multiple roles and role conflicts, too much reliance on personality perfection and moral factors. The selection of outstanding judges has not reached the expected purpose, which also shows the lack of institutional coordination under the limitations of the economic function of ideology, the perfect personality of outstanding judges highlights the weakness of the judicial professionalization system. After reflecting on the moral and political factors in the work of judges, the author thinks that the construction of judges' contingent should rely on the system construction and system norm instead of relying on moral example. The urgent task is to promote the professionalization of judges and correctly handle the relationship between the judiciary and the leaders of the ruling party. In a word, the judicial reform should not go back.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.2

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