马克思主义视阈下独立审判制度改革路径研究
发布时间：2018-09-15 19:44
【摘要】：随着我国公众权利意识普遍觉醒和增强、依法治国全面深入推进,司法不公不严不廉等问题日益凸显。作为维护社会公平正义最后的裁判救济形式的审判制度与民主法治的发展越来越不相适应,亟待改革完善。改革的核心问题是关于法院的各项制度如何适应法官独立中立亲历审理、自由公正权威裁判的审判规律。本文简要梳理分析马克思恩格斯在批判西方资本主义司法制度时阐述的马克思主义关于独立审判等法学和司法思想。他们深刻阐述审判权的政治性和社会性双重特性,在阶级社会作为统治阶级意志体现的法律及审判必然打上统治阶级的深深烙印,在国家政治层面看审判不可能独立,必然为统治阶级利益服务；同时在社会治理层面,在统治阶级取得政权后,为维护社会政治稳定等重大阶级利益,实现本阶级利益最大化,必然要实行独立审判(审判独立、司法独立),达成审判自由,实现司法权威,这符合人民主权原则、国家分权制衡、反对集权专制及其他权力对审判权僭越的时代潮流,符合审判只有独立中立亲历才能查清事实的事理规律和只有依法自由思考才能形成公正的内心确信的思维规律；符合追求公平正义和人的自由解放的审判目的；独立审判包括法院独立、陪审法庭独立、法官独立等内容；独立自由审判必须要有审判民主、审判公开和审判监督作保障；审判独立必将随着生产力的发展而发展、随着国家的消亡而消亡等。马克思恩格斯从西方资本主义关于司法独立的理论和实践中吸取了营养,但也深刻揭露了资产阶级司法绝对独立的虚伪性。本文对审判实践中碰到的各种影响制约阻碍人民法院(法官)独立审判的因素进行了归纳分析,如传统社会人情关系无处不在的干扰,案多人少,审判能力不足,法院保障“地方化”导致易受制于地方政府,其他机关不当干预,政法系统内部“配合有余而制约不足”,法院内部审判管理权、审判监督权和行政管理权对审判权的不当干预,法官职业保障不力,法官职业道德素质不高,裁判不公、审判的效率效果不够好、司法腐败导致司法权威不高,司法公信力不够等,都是目前改革需要重点关注的问题。本文认为,独立审判改革应从外部、内部两个方面同时推进。关于外部改革,主要设想一是要平衡人民代表大会制度下“一府两院”政治地位,将各级法院机构确立为同级政府同级或副职级规格；二是以立法规范党对法院工作的领导,列明权力正面负面清单,特别是对个案的权力清单,从而在政治层面加强和改善党的领导,在社会治理层面严格尊重独立审判、司法权威；法院的人财物由全国人大预算、国家财政保障；政府不干预审判,依法积极参与行政诉讼,尊重审判权威；立法规范人大、政协、工青妇等群团社会组织对审判活动的监督关系；特别应立法规范新闻舆论媒体包括互联网新媒体对审判活动的监督关系,禁止其对审判活动不当干涉干扰,防止舆论审判；立法建纪禁止中共党员和国家公职人员对审判活动的不当干预干扰；三是法院人财物保障和管理与市县两级政府脱钩,从长远看应由中央保障管理；四是建立与行政区划适当分离的审判管辖制度；五是改革完善人民陪审员制度。关于内部改革,一是法官精英化改革,确保法官有能力有职业道德独立公正审判,加强法官职业保障,确保法官敢于独立审判,改革和强化法官惩戒机制,保证法官独立审判的公正效果；二是改革落实“合议制”为核心的审判权配置；三是探索主审法官办案责任制改革；四是改革审判管理权、审判监督权和法院行政管理权,保证三权不侵犯审判权的行使；五是改革规范上下级法院审级关系,确保上下级法院审判权独立运行。
[Abstract]:With the general awakening and strengthening of public awareness of rights in China, the comprehensive and in-depth promotion of the rule of law, judicial injustice is becoming increasingly prominent. As the last form of judicial relief to safeguard social fairness and justice, the judicial system is increasingly incompatible with the development of democracy and the rule of law. The core issue of reform is about law. How the various systems of the court adapt to the trial law of independent and neutral trial and free and impartial authoritative judgment of judges. This paper briefly analyzes Marx and Engels'Marxist jurisprudence and judicial thoughts on independent trial when criticizing the western capitalist judicial system. They profoundly expound the political nature and society of judicial power. The dual character of society inevitably marks the ruling class deeply in the law and judgment embodied by the will of the ruling class in class society, and judgment is impossible to be independent at the national political level, so it is bound to serve the interests of the ruling class; at the same time, at the social governance level, it is of great significance to maintain social and political stability after the ruling class gains power. In order to maximize the interests of the class, it is necessary to carry out independent trials (judicial independence, judicial independence), achieve judicial freedom and realize judicial authority. This is in line with the principle of people's sovereignty, the state's separation of powers and checks and balances, and opposes the trend of the times when totalitarian dictatorship and other powers overstep judicial power. It is in line with the fact that only independent and neutral trial can be investigated clearly. The law of facts and the law of free thinking can only form a just and convicted thinking law; accord with the purpose of pursuing fairness, justice and human liberation; independent trial includes court independence, jury court independence, judge independence and so on; independent and free trial must have trial democracy, trial openness and trial. Judicial supervision as a guarantee; judicial independence will develop with the development of productive forces, and die with the demise of the state. Marx and Engels have absorbed nutrition from the theory and practice of western capitalism on judicial independence, but also profoundly exposed the hypocrisy of absolute independence of bourgeois justice. Various factors affecting and restricting the independent trial of the people's courts (judges) are summarized and analyzed, such as the ubiquitous interference of human relations in traditional society, the small number of cases, the inadequate judicial capacity, the court's guarantee of localization, which leads to the vulnerability to local governments, improper intervention by other organs, and the inadequate coordination within the political and legal systems. "The inappropriate interference of judicial power, judicial supervision power and administrative power in judicial power within the courts, the weak professional security of judges, the low professional ethics quality of judges, the unfair adjudication, the inefficient effect of trials, the low judicial authority caused by judicial corruption, and the lack of judicial credibility are all the questions that need to be focused on in the current reform. This paper holds that the reform of independent trial should be carried out both externally and internally. The first is to balance the political status of the "one government, two courts" under the system of the People's Congress, to establish the courts at all levels as the same level of government or deputy level specifications; and the second is to legislate to regulate the leadership of the Party over the work of the courts. To guide and list the positive and negative power lists, especially the power lists of individual cases, so as to strengthen and improve the Party's leadership at the political level, strictly respect independent trials and judicial authority at the level of social governance; the people and property of the courts are budgeted by the National People's Congress and financially guaranteed by the state; the government does not interfere in trials, actively participates in administrative litigation according to law, and respects the judicial authority. Judicial authority; Legislation should regulate the supervisory relationship between the NPC, CPPCC, young women and other social organizations on trial activities; in particular, legislation should regulate the supervisory relationship between the media of news and public opinion, including the new media on the Internet, on trial activities, prohibit their improper interference in trial activities and prevent public opinion trials; Legislation should prohibit Party members and the Communist Party of China from establishing discipline. Improper interference of family and public officials in judicial activities; the third is the decoupling of court personnel and property security and management from the municipal and county governments, which should be managed by the central security in the long run; the fourth is the establishment of a trial jurisdiction system which is properly separated from the administrative divisions; the fifth is the reform and improvement of the people's jury system. Reform, ensure that judges have the ability to have professional ethics, independent and fair trial, strengthen the professional protection of judges, ensure that judges dare to try independently, reform and strengthen the judge disciplinary mechanism, ensure the impartial effect of independent trial of judges; reform and implement the "collegial system" as the core of the allocation of jurisdiction; explore the presiding judge responsibility system for handling cases. Fourth, reform the judicial management power, the judicial supervision power and the court administrative power to ensure that the three powers do not infringe on the exercise of judicial power; fifth, reform and standardize the trial-level relationship between the lower and higher courts to ensure the independent operation of the trial power of the lower and higher courts.
【学位授予单位】：华中师范大学
【学位级别】：博士
【学位授予年份】：2016
【分类号】：D926.2
，
本文编号：2244320
[Abstract]:With the general awakening and strengthening of public awareness of rights in China, the comprehensive and in-depth promotion of the rule of law, judicial injustice is becoming increasingly prominent. As the last form of judicial relief to safeguard social fairness and justice, the judicial system is increasingly incompatible with the development of democracy and the rule of law. The core issue of reform is about law. How the various systems of the court adapt to the trial law of independent and neutral trial and free and impartial authoritative judgment of judges. This paper briefly analyzes Marx and Engels'Marxist jurisprudence and judicial thoughts on independent trial when criticizing the western capitalist judicial system. They profoundly expound the political nature and society of judicial power. The dual character of society inevitably marks the ruling class deeply in the law and judgment embodied by the will of the ruling class in class society, and judgment is impossible to be independent at the national political level, so it is bound to serve the interests of the ruling class; at the same time, at the social governance level, it is of great significance to maintain social and political stability after the ruling class gains power. In order to maximize the interests of the class, it is necessary to carry out independent trials (judicial independence, judicial independence), achieve judicial freedom and realize judicial authority. This is in line with the principle of people's sovereignty, the state's separation of powers and checks and balances, and opposes the trend of the times when totalitarian dictatorship and other powers overstep judicial power. It is in line with the fact that only independent and neutral trial can be investigated clearly. The law of facts and the law of free thinking can only form a just and convicted thinking law; accord with the purpose of pursuing fairness, justice and human liberation; independent trial includes court independence, jury court independence, judge independence and so on; independent and free trial must have trial democracy, trial openness and trial. Judicial supervision as a guarantee; judicial independence will develop with the development of productive forces, and die with the demise of the state. Marx and Engels have absorbed nutrition from the theory and practice of western capitalism on judicial independence, but also profoundly exposed the hypocrisy of absolute independence of bourgeois justice. Various factors affecting and restricting the independent trial of the people's courts (judges) are summarized and analyzed, such as the ubiquitous interference of human relations in traditional society, the small number of cases, the inadequate judicial capacity, the court's guarantee of localization, which leads to the vulnerability to local governments, improper intervention by other organs, and the inadequate coordination within the political and legal systems. "The inappropriate interference of judicial power, judicial supervision power and administrative power in judicial power within the courts, the weak professional security of judges, the low professional ethics quality of judges, the unfair adjudication, the inefficient effect of trials, the low judicial authority caused by judicial corruption, and the lack of judicial credibility are all the questions that need to be focused on in the current reform. This paper holds that the reform of independent trial should be carried out both externally and internally. The first is to balance the political status of the "one government, two courts" under the system of the People's Congress, to establish the courts at all levels as the same level of government or deputy level specifications; and the second is to legislate to regulate the leadership of the Party over the work of the courts. To guide and list the positive and negative power lists, especially the power lists of individual cases, so as to strengthen and improve the Party's leadership at the political level, strictly respect independent trials and judicial authority at the level of social governance; the people and property of the courts are budgeted by the National People's Congress and financially guaranteed by the state; the government does not interfere in trials, actively participates in administrative litigation according to law, and respects the judicial authority. Judicial authority; Legislation should regulate the supervisory relationship between the NPC, CPPCC, young women and other social organizations on trial activities; in particular, legislation should regulate the supervisory relationship between the media of news and public opinion, including the new media on the Internet, on trial activities, prohibit their improper interference in trial activities and prevent public opinion trials; Legislation should prohibit Party members and the Communist Party of China from establishing discipline. Improper interference of family and public officials in judicial activities; the third is the decoupling of court personnel and property security and management from the municipal and county governments, which should be managed by the central security in the long run; the fourth is the establishment of a trial jurisdiction system which is properly separated from the administrative divisions; the fifth is the reform and improvement of the people's jury system. Reform, ensure that judges have the ability to have professional ethics, independent and fair trial, strengthen the professional protection of judges, ensure that judges dare to try independently, reform and strengthen the judge disciplinary mechanism, ensure the impartial effect of independent trial of judges; reform and implement the "collegial system" as the core of the allocation of jurisdiction; explore the presiding judge responsibility system for handling cases. Fourth, reform the judicial management power, the judicial supervision power and the court administrative power to ensure that the three powers do not infringe on the exercise of judicial power; fifth, reform and standardize the trial-level relationship between the lower and higher courts to ensure the independent operation of the trial power of the lower and higher courts.
【学位授予单位】：华中师范大学
【学位级别】：博士
【学位授予年份】：2016
【分类号】：D926.2
，
本文编号：2244320
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