论我国法官责任豁免制度的构建

发布时间：2018-06-05 08:38

本文选题：法官豁免权 + 错案责任追究　；参考：《上海师范大学》2017年硕士论文

【摘要】：随着我国司法改革的深化,对法官的各方面要求也是越来越高,法官越来越精英化、职业化,但是面对这一新职业群体,我国法律中并没有给予足够的权利保障,相反,随着经济的全球化,犯罪种类的多样化以及司法公正与社会公正的不平衡,法官面临的职业压力倒是有增无减。近年来,随着法治的进步,诉讼中出现的冤假错案不断的被纠正,纠正冤假错案的同时,引起了社会对司法公平正义的质疑,一定程度上损害了我国法律的权威和公信力。为了提高办案质量,维护司法公正,我国法院在实行审判改革过程中,设立了法官错案责任追究制度。我国设立的法官错案责任追究制度在保证法官于诉讼中正确行使审判权,实现司法公正方面,具有一定的积极意义。但是,其弊端也是显露无疑,只要诉讼中出现冤假错案,加上社会舆论的倾向,就会不分青红皂白的追究法官的责任。这样就忽视了对法官职业群体的权利保障,使法官们在审判案件时,置自己于不可测的风险之中。这种情况体现在了最近几年的司法实践过程中,法院内部出现法官消极判案,提交审判委员会集体讨论的案件数量一番再番,同时法官也因行使职权却得不到强有力的保护而忧心忡忡,这种现象导致法官不敢独立审案而不求进取,司法人员素质也无法提高,从而形成一种恶性循环。这种现象的出现说明我国在对法官职业群体的权利保障方面并没有给予足够的重视,在法官的任免、薪资待遇、责任等方面依然亟需改善。给法官足够的职业保障,是为了保证法官的独立地位,使其能够独立公正执法不受外在影响,不偏不倚的作出裁判,维护司法公正。在司法过程中,法官的独立性地位是司法公正的基础,而目前,由于保障缺失,法官的司法行为正在受到越来越多的干扰,所以,构建我国的法官责任豁免制度已经迫在眉睫。本文结合近年来司法实践,除第一章的绪论外,从四个部分展开论述:第一部分为“法官责任豁免制度的起源和发展”。主要阐述了法官豁免制度的产生和发展以及当代的法官责任豁免制度的发展趋势与变革。西方国家从历史上就对法官职业的权利保障比较重视,而我国从历史上就缺乏对法官的权利保障,由于缺乏这种保障,才有沈家本所言:“时人视秋曹为畏途”。然后分析了从我国建国至今法官豁免权空间的有限性。也进一步阐述了各国法官责任豁免制度的发展趋势,同时指出了我国法官责任豁免制度的发展现状。第二部分为“构建法官责任豁免制度的依据”。主要阐述了构建法官责任豁免制度的理论基础以及现实需要。构建法官责任豁免制度是一种权利控制与保障的统一,法官作为消极中立的裁判者的有限理性以及司法的不确定性,需要有一种制度来将这种不确定性带来的后果与法官个人责任隔离开来,同时也促进法官独立判案,维护司法公正和司法权威。实践中错案责任追究的模糊界限以及各地做法不一,导致不少法官蒙冤受屈,所以为了保障法官的权利,加强法官的职业荣誉感,必须要建立一套科学有效的法官责任豁免制度。第三部分为“法官责任豁免制度的域外考察”。主要阐述了英美法系和大陆法系国家的法官责任豁免制度的起源、发展以及适用,同时也分析了国际规范中一些关于法官责任豁免制度的演变和适用,通过对比分析各国以及国际上的法官责任豁免制度的共性和差异,来探寻该制度的内在机理及其运行规律,为我国法官责任豁免制度的构建提供借鉴。第四部分为“我国法官责任豁免制度的构想”。通过加强立法,在法律上肯定法官的豁免权,并具体的规定法官的豁免内容及其界限。十八大以来,不少冤假错案得以纠正,但是笔者认为错案责任追究与豁免是相辅相成的,对故意或者重大过失造成的错案予以追责,体现了问题意识,有利于促进司法人员增强责任心,以临渊履薄的心态对待每一个案件,全面收集、精心审查每一个证据,从而提高案件质量和司法公信力;同时,错案是司法规律中的一个正常现象,对无故意或重大过失造成的错案豁免是为了促进法官独立,维护司法公正和权威,遵循司法规律,是符合现代司法理念的。笔者通过分析错案的种类,明确了哪些错案需要追究责任、哪些错案要给予法官以豁免权,并提出了在中级以上法院建立法官评审委员会,为构建我国法官责任豁免制度提供程序上的保障。法治是现代国家所追求的的共同目标,而法官责任豁免制度是现代法治文明国家的标志之一。这一制度关系着一国的法官能否独立行使裁判权,司法是否公正以及司法过程中当事人的合法权益是否得到保证等问题。法官责任豁免制度产生于西方英美法系国家,它的出现与西方司法独立运动有着密切的内部联系。因此,想要将具备深厚西方司法独立思想的制度自如的运用于我国司法体制中,不仅要深入的研究法官责任豁免制度的内在机理,还需要对各国的法官责任豁免制度加以全面分析和比较,同时还要兼顾我国的国情以及历史以来的司法运行规律。
[Abstract]:With the deepening of China's judicial reform, the requirements for all aspects of the judges are becoming higher and higher, and the judges are becoming more and more elite and professional. But in the face of this new professional group, there is no sufficient protection for the rights of our country. On the contrary, with the globalization of the economy, the diversity of the types of crimes and the impartiality of judicial justice and social justice. In recent years, with the progress of the rule of law, with the progress of the rule of law, the wrongful and false cases in the lawsuit have been constantly corrected, and the wrong cases are corrected. At the same time, the judicial fairness and justice are questioned by the society. To some extent, the authority and credibility of the law in our country are damaged to some extent. In order to improve the quality of the case and maintain the Department of maintenance. In the process of judicial reform, the court of our country established the system of investigating the miscase of judges in the process of trial reform. The system of investigating the miscase responsibility of judges in our country has certain positive significance in guaranteeing the judges' right to exercise the trial right in the lawsuit and to realize judicial justice. However, the malpractice of the judges is also obvious, as long as there is an injustice in the lawsuit. The false case, coupled with the tendency of public opinion, will be indiscriminate in investigating the responsibility of the judges. This ignores the protection of the rights of the judges' professional groups and makes the judges put themselves in an unmeasurable risk in the trial cases. This is reflected in the judicial practice in recent years. At the same time, the number of cases submitted to the trial committee is repeated, and the judges are also worried because of the lack of strong protection for the exercise of their powers. This phenomenon leads the judge to dare not to examine the case independently and not to seek progress, and the quality of the judiciary can not be improved, thus forming a vicious circle. This phenomenon shows the appearance of this phenomenon. Our country has not given enough attention to the rights protection of the judges' professional groups, and still needs to be improved in the appointment, removal, salary, and responsibility of the judges. The sufficient occupational security for the judges is to ensure the independent status of the judges and make them independent and impartial and independent of the external influence. Judicial justice. In the judicial process, the independence of the judge is the basis of judicial justice. At present, because of the lack of security, the judicial act of the judge is being disturbed more and more. Therefore, it is imminent to construct the system of exemption of the judges' responsibility in our country. In this paper, in combination with the judicial practice in recent years, the first chapter, in addition to the introduction of the four, is from the first chapter. Part one is: the first part is "the origin and development of the system of exemption of judges' responsibility". It mainly expounds the emergence and development of the system of judge immunity and the development trend and reform of the exemption system of judges' responsibility. For the protection of the rights of the judge, because of the lack of this guarantee, Shen Jiaben said, "the time people look at the autumn Cao as the road". Then the limitation of the space for the exemption of judges from the founding of our country is analyzed. The development trend of the exemption system of the judges' responsibility in various countries is further elaborated, and the development of the exemption system of the judges' responsibility in China is also pointed out. The second part is the basis of "building the system of exemption of judges' responsibility". It mainly expounds the theoretical basis and practical needs of constructing the system of exemption of judges' responsibility. There is a system to separate the consequences of this uncertainty from the personal responsibility of the judge, at the same time, it also promotes the judge to judge the case independently, and maintains judicial justice and judicial authority. In practice, the fuzzy limits of the misjudged case responsibility and the different practices in various places have caused many judges to be wronged, so to guarantee the rights of the judges, the law should be strengthened. The sense of professional honor of the official must establish a set of scientific and effective exemption system for the responsibility of judges. The third part is "the extraterritorial investigation of the exemption system of judges". It mainly expounds the origin, development and application of the exemption system of judges' responsibility in common law and civil law countries, and also analyses some of the judges in international norms. The evolution and application of the system of liability exemption, through the comparison and analysis of the commonness and difference of the exemption system of judges' responsibility in various countries and countries, to explore the internal mechanism and running rules of the system, and provide reference for the construction of the exemption system of judges' responsibility in our country. The fourth part is "the conception of the exemption system of the responsibility of judges in our country". Strong legislation affirms the immunity of judges in law, and specifically stipulates the exemption of judges and their limits. Since eighteen, many false cases have been corrected, but the author thinks that the investigation of miscase and exemption is complementary to each other, and it is responsible for the miscase caused by deliberate or major negligence, which embodies the problem consciousness and promotes the promotion of the problem. The judicial personnel should strengthen their sense of responsibility, treat each case with a thin attitude towards the abyss, collect and examine every evidence in an all-round way, so as to improve the quality of the case and the credibility of the judiciary. At the same time, the miscase is a normal phenomenon in the law of judicature, and the miscase immunity caused by unintentional or major negligence is to promote the independence of the judge and the maintenance of the Department. The law justice and authority, following the law of judicature, is in line with the modern judicial idea. Through the analysis of the types of misjudged cases, the author makes clear which cases need to be held accountable, which cases should be exempt from the judges, and put forward a judge Review Committee in the intermediate and above courts to provide a procedure for the construction of the exemption system of the judges' responsibility in China. The rule of law is the common goal pursued by the modern state, and the exemption system of the judge's responsibility is one of the symbols of the modern and civilized country. The system is related to whether the judges of a country can exercise the jurisdiction independently, whether the judiciary is fair and whether the legitimate rights and interests of the parties in the judicial process are guaranteed. The emergence of the exemption system in the Western Anglo American legal system countries has a close internal connection with the western judicial independence movement. Therefore, it is necessary to not only deeply study the internal mechanism of the exemption system of the judges' responsibility, but also to the law of various countries. The system of exemption from official liability should be comprehensively analyzed and compared. At the same time, we should also take into account the situation of our country and the law of judicial operation since the beginning of history.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926.2

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