法官司法能力研究

发布时间：2018-06-01 14:33

本文选题：司法能力 + 思维能力　；参考：《南京理工大学》2013年博士论文

【摘要】：作为与党的执政能力相伴生的一个概念,司法能力一经问世便受到广泛关注。从司法能力诞生的历程及背景不难发现,这一概念自一开始便带有了极强的政治色彩。对司法能力的解读,便极可能因为泛政治化而局限于党政政策实施层面。而事实上,纵观近几年有关司法能力的学界研究成果,或多或少都有着政治政策的影子,总体上呈现出以司法能力建设方案架构代替司法能力本身的研究的现象。也正因为对司法能力本身研究不够,导致对司法能力建设的研究也落入俗套：即把司法能力建设机械的划分为司法审判能力、调解能力、管理能力、服务能力、认定证据能力、适用法律能力等等部分,分门别类的提出应对的方案。这种悬空的视角使得方案本身可行性大打折扣,这种研究的价值也就仅仅限于司法能力的政治呐喊上。对此,本文试图跳出这种拘囿,从司法能力本身着手研究,来为司法能力基础理论乃至司法能力建设的基础依据厘清思路。就司法能力这一概念而言,放眼全球,并不是一个普适性的词语。据笔者掌握的相关资料显示,国外法学理论界并未有司法能力这一专业概念,在实践运用层面只是偶有提及：欧洲开放社会研究院实施的“加人欧盟跟踪计划”,就加人欧盟10个中、东欧国家的司法改革情况出版的两个评估报告之一即是有关司法能力的报告。欧盟与成员国之间有相关的司法能力建设合作项目。此外,国外关于司法能力并没过多述及,由此,对司法能力这一概念的阐释,将开创法学研究的又一视角,对国内及国际上都将产生积极意义。 “中国法学的最大误区是将学术和政治不加区分,学者不是从事客观的学术活动,而是动辄将自己的政治观点强加进自己的学术研究中。”对于著名法学家陈瑞华先生的劝诫,笔者颇有感触,深表认同。对此,笔者将避开党的执政能力这个着眼点,把视角放在法官职业素养能力上,对司法能力进行梳理分析,并试图总结出法官司法能力的构成及规律,以期在法学领域构架司法能力的基础理论。全文以职业能力为视角,以解构式的研究方法探析了法官司法能力的内涵和外延。在初步形成法官司法能力理论体系的基础上,反观国外法官司法能力提升的有益经验及相应的社会、文化环境,通过审视我国法官司法能力现状,提出了适应我国时代特征的法官司法能力提升的思路和路径。全文共分七部分。第一部分,绪论。该部分阐述了法官司法能力这一课题的选题意义(包括理论意义、实践意义)、国内外文献综述、研究方法、创新观点等问题。第二部分,法官司法能力的概念界定。对司法能力的理解首先应该从司法的性质人手,然后根据司法活动本身的规律来寻找司法能力的规定性。司法是一种职业,司法能力究其实质应该是一种职业能力。任何职业都有一定的工作任务要求,工作任务的胜任力是职业能力的题中之意。思维和语言是法官这一职业区别于其他职业的集中展现,那么,法官司法能力这一概念在本文中的界定为：法官司法能力是指法官在特定思维的指引下,运用特定语言完成审判任务的胜任力。第三部分,法官司法能力的构成与表现。法官思维能力和法官语言能力构成了法官司法能力的核心内涵。法官思维能力。包括逻辑思维能力、法律思维能力、经验思维能力和社会思维能力。其中逻辑思维能力是法官思维能力的基础,有助于法官建立和把握法律判断；法律思维能力是法官思维能力的核心,也是法官区别于其他职业的集中体现；经验思维能力指的是法官以普通大众的角色身份进行思维来认定案件事实的能力。法官的经验思维能力受自身直觉、情感、人格、善断等前见的影响,主要体现于对经验法则的理解及运用上。法官语言能力。法官在行使司法权审判案件时,对语言的运用和掌控直接影响着司法形象,甚至关涉人们对司法公正的认知。总体而言,法官的语言水平包括法官应当及如何在履行职务过程中使用语言。法官使用的语言包括司法口语和书面语言。法律的实施和运用依赖于司法口语和法律文书的书面语言交替使用来完成。法官司法能力外在展现于法官处理案件中的各个环节,包括事实认定能力、法律适用能力、诉讼调解能力、庭审驾驭能力、裁判文书制作能力等方面。第四部分,国外法官司法能力的考察与启示。本部分概览了国外有关法官司法能力的相关标准,探析了各国提升法官司法能力的共通性举措,并立足国内环境汲取国外的有益经验与启示。第五部分,我国法官司法能力的现状、问题及原因。论文以我国的任职资格为切入点,通过归纳法官的年龄、学历、性别等构成勾勒出我国法官司法能力相对不高的现状。并从法官思维能力和语言能力两个维度思索了我国法官司法能力中存在的问题,并进一步分析了问题的根源性成因,即司法独立程度不高、法官遴选机制不科学、法官惩戒制度不完善、法官管理行政化、法官培训形式化等。第六部分,提升我国法官司法能力的基本思路。法官司法能力的提升,关键在于法官自己有提升能力的内源动力,同时离不开制度保障和司法环境的改善。提升我国司法能力的基本思路应当是,以增强司法职业道德为导向,改善现有司法环境,重视和加强制度保证。第七部分,提升我国法官司法能力的若干构想。本部分是论文的重心,提出了具有操作意义的提升我国法官司法能力的若干方案。如实现法院独立与法官独立相结合；构建中国特色的法官遴选制度；实现法官在职培训的专业化、规范化；建立他律模式的法官惩戒制度；改革司法能力语境下相关配套制度,等等。
[Abstract]:As a concept associated with the ruling ability of the party, the judicial ability has been widely paid attention as soon as it comes out. From the history and background of the birth of the judicial ability, it is not difficult to find that this concept has a strong political color from the beginning. The interpretation of judicial ability is very likely to be limited to the implementation level of the party and government policy. In fact, in the past few years, there are more or less shadow of political policy in the study of judicial ability in recent years. In general, there is a phenomenon of the study of judicial capacity construction instead of the judicial ability itself. It is also because of the lack of research on the judicial ability itself, which leads to the research on the construction of judicial capacity. Common set: the division of judicial capacity building machinery is divided into judicial ability, mediation capacity, management ability, service ability, identification of evidence ability, the application of legal ability and so on, and other parts of the proposed solutions. The suspension of the perspective makes the scheme itself discounted, the value of this research is limited to only the division. On the political cry of the ability of law, this article attempts to jump out of this kind of detention, to make a study from the judicial ability itself, to clarify the basic basis for the basic theory of judicial ability and the construction of judicial ability. On the practical application level, there is only an occasional mention of the "additional European Union tracking plan" implemented by the European Academy of open society. One of the two evaluation reports on judicial reform in Eastern European countries is one of the reports on judicial capacity, which is one of the 10 evaluation reports on judicial reform in Eastern European countries. There is a relevant judicial capacity building cooperation project between the alliance and the member states. In addition, the judicial ability of foreign countries has not been overstated. Thus, the interpretation of the concept of judicial ability will create another perspective of legal research, which will have positive significance both at home and abroad.
"The biggest misunderstanding of China's law is that it does not distinguish between academia and politics, but scholars do not engage in objective academic activities, but often impose their own political views on their own academic research." the author's admonition to the famous jurist, Mr. Chen Ruihua, has a deep feeling and a deep recognition. At the point of view, we put the angle of view on the judge's professional competence, analyze the judicial ability, and try to sum up the Constitution and law of the judge's judicial ability, in order to frame the basic theory of judicial ability in the field of law.
The full text analyses the connotation and extension of the judge's judicial ability with the view of professional ability and deconstructed research method. On the basis of the preliminary formation of the theoretical system of judge's judicial ability, the beneficial experience and corresponding social and cultural environment of the judicial ability of the judges abroad are reviewed, and the present situation of the judicial ability of the judges in China is reviewed. This article is divided into seven parts to adapt to the characteristics of our times.
The first part, introduction. This part expounds the significance of the topic of the judge's judicial ability (including theoretical significance, practical significance), literature review at home and abroad, research methods, innovative views and so on.
The second part is the definition of the judicial ability of the judge. The understanding of the judicial ability should first be based on the nature of the judiciary, and then look for the stipulation of the judicial ability according to the law of the judicial activity itself. The competence of the work task is the meaning of the job competence. Thinking and language are the focus of the judge's profession, which is different from other professions. Then, the definition of the judge's judicial ability in this article is that the judge's judicial ability refers to the competence of a judge to complete the trial task with a specific language under the reference of a particular thinking. Power.
The third part is about the Constitution and performance of judges' judicial capacity. The core competence of judges' judicial ability is the judge's ability to think and judge's language ability.
The judge's thinking ability includes logical thinking ability, legal thinking ability, experience thinking ability and social thinking ability. The logical thinking ability is the basis of the judge's thinking ability, which helps judge to establish and grasp the legal judgment; the legal thinking ability is the core of the judge's thinking ability, and the judge is different from the other occupations. The experience thinking ability refers to the ability of the judge to think about the fact of the case with the role of the general public. The judge's experience thinking ability is influenced by his own intuition, emotion, personality and good judgment, which is mainly reflected in the understanding and application of the rule of thumb.
Judges' language ability. When judges exercise judicial power to trial cases, the use and control of language directly affects the image of the judiciary, and even concerns the perception of justice. In general, the language level of a judge includes the use of language in the process of performing his duties. Written language. The implementation and application of law depend on the alternation of written language in judicial spoken language and legal documents.
The judge's judicial ability is unfolded in all aspects of the judge's handling of the case, including the ability to identify the facts, the ability to apply the law, the ability to conciliate the lawsuit, the ability to control the trial, and the ability of the making of the referee's documents.
The fourth part, the investigation and Enlightenment of the judicial ability of the judges in foreign countries. This part summarizes the relevant standards of the judicial ability of judges abroad, probes into the common measures to promote the judicial ability of judges in various countries, and draws the useful experience and Enlightenment of foreign countries on the basis of the domestic environment.
The fifth part, the present situation, the problem and the cause of the judicial ability of the judge in our country. The thesis takes the qualification of our country as the breakthrough point, outlines the status of the judge's judicial ability relatively low through the induction of the judges' age, education, sex and so on. It also considers the judicial ability of the judges in our country from the two dimensions of the judge's thinking ability and language ability. The existing problems, and further analysis of the root causes of the problem, that is, the degree of independence of the judiciary is not high, the selection mechanism of judges is not scientific, the punishment system of judges is not perfect, the administration of judges is administration, and the training of judges is formalized.
The sixth part is to improve the basic thinking of the judicial ability of the judges in our country. The key to the promotion of judicial ability is that the judges themselves have the internal power to improve their ability. At the same time, it is inseparable from the system guarantee and the improvement of the judicial environment. The basic idea of improving the judicial ability of our country should be to strengthen the judicial professional ethics and improve the existing judicature. Environment, pay attention to and strengthen the system guarantee.
The seventh part is a number of ideas to enhance the judicial ability of the judges in our country. This part is the focus of the thesis, and puts forward some proposals to improve the judicial ability of the judges in our country, such as the realization of the combination of the independence of the court and the independence of the judges, the establishment of a judge selection system with Chinese characteristics, and the specialization and standardization of the on-the-job training of judges. To establish a disciplined judge's disciplinary system; to reform relevant supporting systems in the context of judicial capacity, and so on.
【学位授予单位】：南京理工大学
【学位级别】：博士
【学位授予年份】：2013
【分类号】：D926.2

【参考文献】