我国法官身份保障制度完善研究

发布时间：2018-04-20 14:55

本文选题：法官身份保障 + 罢免制度　；参考：《安徽大学》2017年硕士论文

【摘要】：随着中国法治化程度的不断提高,法官职业保障已成为司法改革的一项重要议题,而作为法官职业保障制度的子制度之一,法官身份保障制度的完善更是司法改革必不可少的一项重要内容。在探索具有中国特色的法官精英化道路的进程中,必须要加强法官对自身职业的认同感及责任感,切实做到依法履行法官职责,维护社会公平正义。在依法治国理念的指引下,开展法官身份保障制度方面的完善研究,对打造一支有学识、有能力、有素质、有纪律的优秀法官队伍亦具有重大意义。法官是在各级人民法院依法行使审判职能的人员,而法官身份保障正是一种保障法官在行使审判职能时免除其后顾之忧、提升法官职业荣誉感的制度。我国法官身份保障制度的完善,不仅是保证我国法官职业化建设向前推进的关键,更是实现司法公正、高效、权威的重要举措。但是,我国目前的法官身份保障却没有得到应有的重视,法律规定的相关内容也较为宽泛抽象,实践中难以对法官形成有效的保障。因此,为维护法官合法权益、保障法官独立公正审判、维护法官队伍的稳定性,现针对我国法官身份保障制度存在的问题,提出相应的完善建议。在任期制度方面,由于当前我国目前的法律规定对法官的任期没有采取统一的标准,尤其在法官的诸多规定沿用公务员法律的情况下,很容易忽视法官职业的特殊性,进而导致法官任期不确定;在法官职务变更方面,我国法律并未对法官的调动范围做出明确具体的规定,尤其是对于从法官职业调动至非法官职业、从审判岗位调动至非审判岗位却没有禁止性规定,一旦调动范围呈多元化扩张,就会很容易忽视法官职业的专门化要求。如果不能根据法官职业化的特点对法官进行合理调动,将不可避免会造成司法审判资源浪费的现象;在退休制度方面,我国法官的退休年龄过早,会对我国的司法审判资源造成极大的浪费。故为改善以上问题,加强法官职业的稳定性,提出了对法官实行终身任职的法官任期制度。此外,在对法官的职务做出变更处理决定时,应充分尊重当事法官本人的意愿;为了使司法资源得到更好的应用,延长法官退休年龄也是适时之举。在法官罢免制度方面,我国目前的立法对法官免职、辞退事由的规定过于宽泛、原则,但又倾向于维护法官身份独立及职务的稳定,导致在实践操作层面上弹性空间较大、不易把握;而且我国目前任免法官的程序设置并不充分具体,致使实践中对法官的免职、辞退的程序往往按照普通公务员的相关程序进行,行政色彩浓厚。故为使法官罢免制度设计的更加科学化,针对法官罢免事由过于宽泛、法官罢免程序缺乏以及法官罢免内容分布散乱、立法层次低等问题,提出了提升法官罢免制度的立法层次,并在《法官法》中整合法官罢免制度的内容,将法官罢免事由、罢免程序等内容在《法官法》中作体系化呈现的措施。法官责任豁免权作为法官的基本权利之一,在保护法官依法行使审判职能方面起着十分重要的作用。域外很多国家为更好保护法官都赋予其充分的责任豁免权,并建立了相对完善的法官责任豁免制度。尽管我国多部法律制度中都规定了法官不承担责任的种种情形,也表述了法官依法履职是受法律保护的,但由于很多规定的效力等级较低,内容不甚健全,导致法官责任豁免的适用范围受到影响,我国目前仍未建立起法官责任豁免制度,诸多相关规定皆浮于表面,其内容并未深入也不具体。而在我国法官身份保障如此缺乏的现状下,不断完善法官责任豁免机制是更好地保障法官独立行使职权的必要措施,因此针对法官责任豁免制度存在的以上种种问题,提出了在立法上明确规定法官责任豁免的范围和程序等内容,在实践中严格审查追究法官责任案件等建议。我国法官身份保障制度的内容纷繁复杂,诸如任期、退休等制度皆不可缺失。再加上随着依法治国理念的不断深入,中国法制化程度不断提高,人们也逐渐认识到法官在解决纠纷、维护社会正义上的重要作用,若法官权益都难以保障,司法权威更无从实现。故为了更好地维护法官合法权益、实现司法的独立公正,建立起一套专门针对法官职业的符合司法规律的身份保障制度来维护法官职务的稳定性是当前司法改革的重要内容。
[Abstract]:With the continuous improvement of the degree of the rule of law in China, the professional security of judges has become an important issue in the judicial reform. As one of the sub systems of the judge's occupational security system, the perfection of the system of the security of the judge is an essential part of the judicial reform. In the course, it is necessary to strengthen the sense of identity and responsibility of the judges to their own profession, to fulfill the duty of judges and to maintain social justice and justice in accordance with the law. Under the guidance of the principle of governing the country according to law, we should carry out the perfect research on the system of the judge's identity security and make a team of excellent judges with knowledge, ability, quality and discipline. It is of great significance. The judge is a person who exercises the judicial function in the people's court at all levels, and the security of the judge is a system to protect the judge from worrying and improving the sense of honor of the judge in the exercise of the judicial function. The perfection of the system of the identification of the judges in our country is not only to guarantee the professional construction of the judges in our country. The key to the entry is the important measure to achieve justice, efficiency and authority. However, the status of the judges in our country has not been paid attention to, the relevant contents of the law are more extensive and abstract, and it is difficult to ensure the effective guarantee of the judges in practice. Therefore, to safeguard the legitimate rights and interests of the judges and ensure the judge's independent and fair trial, In order to maintain the stability of the judge's ranks, the corresponding suggestions are put forward in view of the problems existing in the system of the identification of the judges in our country. In terms of the term of office, the current laws and regulations of our country have not adopted a unified standard on the term of the judge's term of office, especially in the case that the many provisions of the judge follow the law of the civil service. The particularity of the judge's occupation leads to the uncertainty of the judge's term of office. In the aspect of the change of the judges' duties, the law of our country does not make specific and specific provisions on the scope of the judges' mobilization, especially for the transfer from the judge profession to the non judge profession, but there is no prohibition on the transfer from the trial post to the non trial post, once the scope of transfer is transferred. It is easy to ignore the specialization requirements of the judge's occupation in a diversified expansion. If it can not be rationally transferred to the judge according to the professionalization of the judge, it will inevitably result in the waste of judicial resources. In the retirement system, the retirement age of the judges in our country is too early, which will cause the judicial resources of our country very much. Therefore, in order to improve the above problems, strengthen the stability of the judge's occupation, put forward the term system of the judge's tenure for the judge for life. In addition, when the judge's duties are changed, the will of the judge should be fully respected; in order to make the judicial resources better applied and prolong the retirement age of the judge, At the right time, in the case of judge's recall system, the current legislation of our country is dismissal of the judges, the rules of dismissal are too broad and principle, but they tend to maintain the independence of the judges and the stability of their duties, which leads to greater flexibility and not easy to grasp at the practical operation level. Moreover, the procedure setting of judges in our country is not fully equipped at present. As a result, the dismissal of the judges in practice and the procedure of dismissal are often carried out in accordance with the relevant procedures of the ordinary civil servants, and the administrative color is strong. Therefore, it is more scientific to make the design of the judge's recall system more scientific. The legislative level of improving the judge's recall system, and integrating the content of the judge's recall system in the judge's law, and the measures to systematize the judge's dismissal and dismissal procedure in the judge's law. The immunity of judges is one of the basic rights of the judge, and it is ten to protect the judge from exercising the judicial function in accordance with the law. Many foreign countries have given them full responsibility and immunity for the better protection of judges and set up a relatively perfect system of exemption for judges' responsibilities. Although many of the legal systems in our country stipulate all kinds of circumstances in which judges do not take responsibility, it is also stated that judges are protected by law in accordance with the law, but because of many rules. The application scope of the judge's liability exemption has been affected by the lower level of validity and the unsound content, and the exemption system of the judges' liability has been affected. At present, the exemption system of the judges' liability has not been established in our country, and many relevant provisions are floating on the surface. The exemption mechanism is a necessary measure to guarantee the independent exercise of the power of the judge. Therefore, in view of the above problems existing in the exemption system of the judge's liability, the scope and procedure of the exemption of the judges' responsibility are clearly stipulated in the legislation, and the suggestions of investigating and investigating the cases of the judges are strictly examined in practice. In addition, with the continuous deepening of the concept of governing the country and the increasing degree of China's legalization, people have gradually realized the important role of the judges in solving disputes and maintaining social justice. If the rights and interests of the judges are hard to be guaranteed and the judicial authority is not to be realized. It is an important content of the current judicial reform to maintain the legitimate rights and interests of the judges, to realize the independence and impartiality of the judiciary, and to establish a set of identity security system which is specialized in accordance with the law of justice to safeguard the stability of the judges' duties.

【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926.2

【参考文献】