我国案件审批制度研究

发布时间：2018-05-13 01:09

本文选题：法外程序 + 案件审批制度　；参考：《安徽大学》2014年硕士论文

【摘要】：司法程序都由法律规定,这是法治化建设的基础。然而在我国司法实践中却大量存在游离于法律之外的法外程序,也被称为司法潜规则或非正式司法制度。它是相对于法内程序而言的,指虽没有法律明确规定,却真实存在于司法机关内部,并被广泛认可和使用的办案规则、程序。这些程序虽不被记载在案件卷宗中,外界无从知晓,但是却足以影响案件的处理结果,比如案件审批制度、个案请示制度、机关联合办案、人大干预司法等。其中,案件审批制度是在法院内部最普遍的一种法外程序,它不仅无视了司法公开和程序法定原则,更严重损害了司法独立,破坏司法权威,是我国走向法治化道路的严重障碍。但是我国目前学界的探讨中,案件审批制度只是被当做司法制度缺陷所造成的一种司法行政化后果来讨论,缺乏对这一现象单独的整体性研究,大多学者将各种司法行政化的现象一一罗列,指出其危害性并提出建议,但是这些建议往往过于理论化,缺乏对建设新的司法体制的具体构想,缺乏可行性。笔者认为,作为司法中的法外程序的重要表现形式,案件审批制度必须被拿来单独研究,从其产生的历史及原因来分析其利弊,并结合中国实际情况提出改革方案,这对我国未来的司法改革有重大意义。本文基于笔者做实习律师期间对案件审批制度的初步了解,参考现有理论成果,对其表现形式、流程及产生原因作出详细分析,质疑其正当性,提出改革建议,以求尽早消除这种现象,建立真正司法独立的法治国家。本文引言部分,对案件审批制度进行界定并质疑其正当性,梳理前人的研究成果及知识空白,总结国内的研究现状,指出本文创新之处及选题意义。第一部分阐述了案件审批制度的现状。从司法中的法外程序的含义出发,介绍其几种表现形式,随后初步引出案件审批制度的运行机制,紧接着将总结案件审批制度的流程和案件类型,进而使读者对案件审批制度能有全面的认识。第二部分探究案件审批制度的源起及成因。首先通过介绍个案请示制度的历史沿革,了解司法行政化的历史制度原因,进而能更好了解案件审批制度的源起；其次分析案件审批制度存在的文化和制度原因。第三部分是对案件审批制度的正当性质疑。案件审批制度因向庭长、院长请示的隐蔽性,违反了司法回避原则和司法公开原则；决定案件处理的院庭长没有参与庭审听取质证及辩论,违反了直接言词原则；案件审批程序游离于法律之外,使得法官并不是判决的真是决定者,无视司法独立和程序法定原则,严重损害了司法权威。第四部分提出了消除案件审批制度的改革方案。要消除案件审批程序,最首要的当属改革现行的法官管理体制,摆脱行政化色彩,真正实现司法独立；其次需要在立法上确认法官独立原则,这也是现代法治国家的通常做法；再次,严格法官选任制度,提高法官的整体素质；最后,在保证法官独立的基础上,必须建立相应的监督制度。本文通过对案件审批制度这一法外程序的整体性分析,提出了具体的改革方案,因目前学界对案件审批制度的研究主要是以批判其违法性为主,对消除这种现象的建议过于理论化,笔者在最后一部分详细架构了司法体制的改革方案,这也是本文的创新之处,以期抛砖引玉。当然这种消除司法行政化的改革必将是个较长的过程,在改革中须着眼现实、立足长远。
[Abstract]:The judicial procedure is stipulated by the law, which is the basis of the construction of the rule of law. However, in our judicial practice, there are a large number of extrajudicial procedures that are free from law, which are also known as judicial latent rules or informal judicial systems. Although it is not recorded in the case files, the outside world is not known, but it is enough to affect the result of the case, such as the examination and approval system of the case, the case requesting system, the joint handling of the cases by the organs, the intervention of the people's Congress, etc., among which the examination and approval system is the most common in the court. An extrajudicial procedure, which not only ignored the principles of judicial openness and procedural law, seriously damaged the independence of the judiciary and destroyed the authority of the judiciary. It is a serious obstacle to our country's road to the rule of law. However, in the study of our country, the examination and approval system of the case is only regarded as a judicial administrative consequence caused by the defect of the legal degree of the company. To discuss, there is a lack of a single holistic study of this phenomenon. Most scholars have listed all kinds of judicial administration, pointing out their harmfulness and putting forward suggestions, but these suggestions are often too theoretical, lack of concrete ideas on the construction of a new judicial system and lack feasibility. I think, as an extrajudicial procedure in the judiciary. The important form of expression, the case examination and approval system must be studied separately, from its history and reasons to analyze its advantages and disadvantages, and put forward the reform scheme in combination with the actual situation in China, which is of great significance to the future judicial reform in China.
Based on the author's preliminary understanding of the examination and approval system of the case, the author makes a detailed analysis of its forms, processes and causes, questions its legitimacy, and puts forward some suggestions for reform in order to eliminate this phenomenon as soon as possible and establish a country under the rule of law, which is truly judicial and independent.
In this paper, the introduction of this paper defines the examination and approval system of the case and questions its legitimacy, combs the achievements and knowledge gaps of the predecessors, summarizes the current research status in China, and points out the innovation and significance of the topic.
The first part expounds the status of the case examination and approval system. From the meaning of the legal procedure in the judicature, it introduces several forms of expression, then introduces the operation mechanism of the examination and approval system, and then summarizes the process and the type of the case examination and approval system, and then makes the reader have a comprehensive understanding of the examination and approval system of the case.
The second part explores the origin and cause of the case examination and approval system. First, through the introduction of the historical evolution of the case requisition system, we can understand the historical reasons of the judicial administration, and then better understand the origin of the case examination and approval system; secondly, analyze the cultural and institutional reasons for the existence of the case examination and approval system.
The third part is about the justification of the case examination and approval system. The concealment of the examination and approval system for the president and the president is in violation of the principle of judicial avoidance and the principle of judicial openness; the chief of the court, which determines the case dealt with, has not participated in the court hearing and debates, and violates the principle of direct words; the procedure for examination and approval of the case dissociates from the law. Apart from that, the judge is not a decision maker. He ignores judicial independence and procedural statutory principles and seriously damages the judicial authority.
The fourth part puts forward the reform scheme to eliminate the examination and approval system of cases. To eliminate the procedure for examining and approving cases, the most important thing is to reform the present system of judge management, to get rid of the administrative color and to truly realize the independence of the judiciary; secondly, it is necessary to confirm the principle of independence in the legislature, which is also the usual practice of the modern rule of law; again, strict Finally, on the basis of guaranteeing the independence of judges, we must establish corresponding supervision system.
Through the overall analysis of the legal procedure of the case examination and approval system, this paper puts forward the concrete reform plan, because the study on the examination and approval system of the case is mainly to criticize its illegality, and the suggestion to eliminate this phenomenon is too theoretical. The author has made a detailed framework of the reform plan of the judicial system in the last part. It is also the innovation of this article, in order to throw a brick on it. Of course, the reform of eliminating judicial administration will certainly be a long process. In the reform, we must focus on reality and have a foothold in the long run.

【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D926.2

【参考文献】