论律师向法官的职业流动

发布时间：2018-06-18 03:33

本文选题：律师 + 法官　；参考：《中国政法大学》2014年硕士论文

【摘要】：律师和法官有着天然密切的联系，有相同的专业背景，有共同的工作领域，律师向法官的职业流动是同一职业共同体内的流动，本不该有任何障碍。然而，我国目前的法官遴选资格的设置却使很多优秀律师被拒于法官职业之外，在法官的公开选拔上，律师虽有与法官职业联系最密切的职业经验，却没有任何职业优势，在职业经验和年龄方面，还存在不可逾越的障碍，根本原因在于律师在公务员体制外，，而法官在体制内，律师向法官身份的转换存在体制的障碍。从律师中选拔法官对于提高法官队伍的整体素质、促进法官的专业化、精英化和法律职业共同体的形成均有不可替代的积极作用，因而，应当促进律师向法官的职业流动，根据我国国情为律师单独设计法官职业的准入资格和选拔形式。除此之外，应保障法官应有的各种权利，使法官成为律师积极追求的职业。本文第一部分是关于律师向法官职业流动的主要途径，介绍法官的遴选途径和资格及存在的问题，阐述律师向法官职业流动的主要途径。目前我国法官的遴选来源主要是从社会公开选拔，除此之外还有从部队转业、复员的军人进入法院审判岗位，本法院从事非审判岗位的公务员通过司法考试后转为法官，以及由其他机关企事业单位调入审判岗位等选任途径。律师向法官职业流动的途径主要是社会公开选拔。但是，在法官的遴选资格上，对律师而言依然存在一些阻碍，虽不是针对律师，但确实是造成了律师向法官职业流动的障碍。第二部分是关于律师进入法官职业的阻碍因素。从法律层面，律师向初任法官流动并无太大障碍，虽然没有任何优势可言，但也可通过选拔成为法官。但在制度上，体制外的律师和体制内的法官存在身份的差别，法官是“官”，律师是“民”，在几千年的官本位观念的影响下，官民之间沟壑难以逾越。在公开选拔法官的遴选资格上，应届毕业生的要求和最高年龄限制也使得很多律师失去遴选资格。除此之外，还有法官职业对优秀律师吸引力不足、法官权利保障制度不完善等原因使很多优秀律师不愿成为法院。第三部分是促进律师向法官职业流动的积极意义，阐述这种职业流动对法律职业共同体构建的积极意义，律师相对于其他职业对培养法官所需技能的职业经验优势，以及律师向法官职业流动对促进法官职业化、精英化的积极作用。第四部分是促进律师向法官职业流动的建议，根据我国国情为律师单独设计法官职业的准入资格和选拔形式，从律师中选拔与从社会公开选拔的方式并存，但律师应优先于其他职业进行选拔。除此之外，应保障法官应有的各种权利，使法官成为律师积极追求的职业，以促进律师向法官职业的流动。
[Abstract]:Lawyers and judges are naturally closely connected, have the same professional background, have common work areas, the professional mobility of lawyers to judges is the flow within the same professional community, there should not be any obstacles. However, at present, the establishment of judges' selection qualification in our country makes many excellent lawyers excluded from the judge's profession. In the open selection of judges, although lawyers have the most close professional experience with judges, they have no professional advantages. In terms of professional experience and age, there are still insurmountable obstacles, the fundamental reason being that the lawyer is outside the civil service system, and the judge is in the system, there are institutional obstacles to the conversion of the lawyer to the judge's identity. The selection of judges from lawyers plays an irreplaceable role in improving the overall quality of judges, promoting the specialization of judges, excellence and the formation of legal professional community. Therefore, it is necessary to promote the professional mobility of lawyers to judges. According to the situation of our country, we design the admission qualification and the selection form of the judge profession separately for the lawyer. In addition, judges should be guaranteed all kinds of rights so that they can be actively pursued by lawyers. The first part of this paper is about the main ways of professional mobility from lawyer to judge, introduces the selection and qualification of judges and the existing problems, and expounds the main ways of professional mobility of lawyers to judges. At present, the source of selection of judges in our country is mainly from the public. In addition, there are also demobilized servicemen who have been transferred from the army to judicial posts in the courts. After passing the judicial examination, civil servants engaged in non-judicial posts in the Court have been transferred to judges. And by other organs, enterprises and institutions to be transferred to judicial posts and other selection and appointment. The main way for lawyers to move to the profession of judges is the open selection of the society. However, in the selection of judges, there are still some obstacles for lawyers, although not for lawyers, but it does cause obstacles to the professional mobility of lawyers to judges. The second part is about the obstacle factor of lawyer's entering the judge's profession. At the legal level, there is no great obstacle to the flow of lawyers to the new judges. Although there are no advantages, they can also be selected as judges. But in the system, there are differences between the lawyers outside the system and the judges in the system. The judges are "officials" and lawyers are "the people". Under the influence of the concept of official standard for thousands of years, the gullies between the officials and the people are difficult to overcome. In the open selection of judges, the requirements of fresh graduates and the maximum age limit also make many lawyers disqualified. In addition, there are many good lawyers who do not want to become the court because of the lack of attraction to the good lawyers and the imperfect system of the protection of the rights of the judges. The third part is to promote the positive significance of lawyers' professional mobility to judges, expounding the positive significance of this kind of professional mobility to the construction of legal professional community, and the advantages of lawyers' professional experience in training judges' required skills compared with other professions. And the professional flow of lawyers to judges to promote the professionalization of judges, the positive role of excellence. The fourth part is to promote the professional mobility of lawyers to judges, according to the national conditions of our country, we design the admission qualification and selection form of judges' profession separately, and the ways of selecting lawyers from lawyers and public selection from society coexist. But lawyers should be selected in preference to other professions. In addition, it is necessary to protect the rights of judges and make judges become the profession that lawyers actively pursue, so as to promote the flow of lawyers to judges.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D926.5;D926.2

【参考文献】