本文選題：法官身份保障 + 罷免制度��； 參考：《安徽大學(xué)》2017年碩士論文

【摘要】：隨著中國法治化程度的不斷提高,法官職業(yè)保障已成為司法改革的一項重要議題,而作為法官職業(yè)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項重要內(nèi)容。在探索具有中國特色的法官精英化道路的進(jìn)程中,必須要加強法官對自身職業(yè)的認(rèn)同感及責(zé)任感,切實做到依法履行法官職責(zé),維護(hù)社會公平正義。在依法治國理念的指引下,開展法官身份保障制度方面的完善研究,對打造一支有學(xué)識、有能力、有素質(zhì)、有紀(jì)律的優(yōu)秀法官隊伍亦具有重大意義。法官是在各級人民法院依法行使審判職能的人員,而法官身份保障正是一種保障法官在行使審判職能時免除其后顧之憂、提升法官職業(yè)榮譽感的制度。我國法官身份保障制度的完善,不僅是保證我國法官職業(yè)化建設(shè)向前推進(jìn)的關(guān)鍵,更是實現(xiàn)司法公正、高效、權(quán)威的重要舉措。但是,我國目前的法官身份保障卻沒有得到應(yīng)有的重視,法律規(guī)定的相關(guān)內(nèi)容也較為寬泛抽象,實踐中難以對法官形成有效的保障。因此,為維護(hù)法官合法權(quán)益、保障法官獨立公正審判、維護(hù)法官隊伍的穩(wěn)定性,現(xiàn)針對我國法官身份保障制度存在的問題,提出相應(yīng)的完善建議。在任期制度方面,由于當(dāng)前我國目前的法律規(guī)定對法官的任期沒有采取統(tǒng)一的標(biāo)準(zhǔn),尤其在法官的諸多規(guī)定沿用公務(wù)員法律的情況下,很容易忽視法官職業(yè)的特殊性,進(jìn)而導(dǎo)致法官任期不確定;在法官職務(wù)變更方面,我國法律并未對法官的調(diào)動范圍做出明確具體的規(guī)定,尤其是對于從法官職業(yè)調(diào)動至非法官職業(yè)、從審判崗位調(diào)動至非審判崗位卻沒有禁止性規(guī)定,一旦調(diào)動范圍呈多元化擴(kuò)張,就會很容易忽視法官職業(yè)的專門化要求。如果不能根據(jù)法官職業(yè)化的特點對法官進(jìn)行合理調(diào)動,將不可避免會造成司法審判資源浪費的現(xiàn)象;在退休制度方面,我國法官的退休年齡過早,會對我國的司法審判資源造成極大的浪費。故為改善以上問題,加強法官職業(yè)的穩(wěn)定性,提出了對法官實行終身任職的法官任期制度。此外,在對法官的職務(wù)做出變更處理決定時,應(yīng)充分尊重當(dāng)事法官本人的意愿;為了使司法資源得到更好的應(yīng)用,延長法官退休年齡也是適時之舉。在法官罷免制度方面,我國目前的立法對法官免職、辭退事由的規(guī)定過于寬泛、原則,但又傾向于維護(hù)法官身份獨立及職務(wù)的穩(wěn)定,導(dǎo)致在實踐操作層面上彈性空間較大、不易把握;而且我國目前任免法官的程序設(shè)置并不充分具體,致使實踐中對法官的免職、辭退的程序往往按照普通公務(wù)員的相關(guān)程序進(jìn)行,行政色彩濃厚。故為使法官罷免制度設(shè)計的更加科學(xué)化,針對法官罷免事由過于寬泛、法官罷免程序缺乏以及法官罷免內(nèi)容分布散亂、立法層次低等問題,提出了提升法官罷免制度的立法層次,并在《法官法》中整合法官罷免制度的內(nèi)容,將法官罷免事由、罷免程序等內(nèi)容在《法官法》中作體系化呈現(xiàn)的措施。法官責(zé)任豁免權(quán)作為法官的基本權(quán)利之一,在保護(hù)法官依法行使審判職能方面起著十分重要的作用。域外很多國家為更好保護(hù)法官都賦予其充分的責(zé)任豁免權(quán),并建立了相對完善的法官責(zé)任豁免制度。盡管我國多部法律制度中都規(guī)定了法官不承擔(dān)責(zé)任的種種情形,也表述了法官依法履職是受法律保護(hù)的,但由于很多規(guī)定的效力等級較低,內(nèi)容不甚健全,導(dǎo)致法官責(zé)任豁免的適用范圍受到影響,我國目前仍未建立起法官責(zé)任豁免制度,諸多相關(guān)規(guī)定皆浮于表面,其內(nèi)容并未深入也不具體。而在我國法官身份保障如此缺乏的現(xiàn)狀下,不斷完善法官責(zé)任豁免機制是更好地保障法官獨立行使職權(quán)的必要措施,因此針對法官責(zé)任豁免制度存在的以上種種問題,提出了在立法上明確規(guī)定法官責(zé)任豁免的范圍和程序等內(nèi)容,在實踐中嚴(yán)格審查追究法官責(zé)任案件等建議。我國法官身份保障制度的內(nèi)容紛繁復(fù)雜,諸如任期、退休等制度皆不可缺失。再加上隨著依法治國理念的不斷深入,中國法制化程度不斷提高,人們也逐漸認(rèn)識到法官在解決糾紛、維護(hù)社會正義上的重要作用,若法官權(quán)益都難以保障,司法權(quán)威更無從實現(xiàn)。故為了更好地維護(hù)法官合法權(quán)益、實現(xiàn)司法的獨立公正,建立起一套專門針對法官職業(yè)的符合司法規(guī)律的身份保障制度來維護(hù)法官職務(wù)的穩(wěn)定性是當(dāng)前司法改革的重要內(nèi)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.

【學(xué)位授予單位】：安徽大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D926.2

【參考文獻(xiàn)】

相關(guān)期刊論文 前1條

1 陳瑞華;;法官責(zé)任制度的三種模式[J];法學(xué)研究;2015年04期

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本文編號：1778227