馬克思主義視閾下獨(dú)立審判制度改革路徑研究
發(fā)布時(shí)間：2018-09-15 19:44
【摘要】：隨著我國(guó)公眾權(quán)利意識(shí)普遍覺醒和增強(qiáng)、依法治國(guó)全面深入推進(jìn),司法不公不嚴(yán)不廉等問(wèn)題日益凸顯。作為維護(hù)社會(huì)公平正義最后的裁判救濟(jì)形式的審判制度與民主法治的發(fā)展越來(lái)越不相適應(yīng),亟待改革完善。改革的核心問(wèn)題是關(guān)于法院的各項(xiàng)制度如何適應(yīng)法官獨(dú)立中立親歷審理、自由公正權(quán)威裁判的審判規(guī)律。本文簡(jiǎn)要梳理分析馬克思恩格斯在批判西方資本主義司法制度時(shí)闡述的馬克思主義關(guān)于獨(dú)立審判等法學(xué)和司法思想。他們深刻闡述審判權(quán)的政治性和社會(huì)性雙重特性,在階級(jí)社會(huì)作為統(tǒng)治階級(jí)意志體現(xiàn)的法律及審判必然打上統(tǒng)治階級(jí)的深深烙印,在國(guó)家政治層面看審判不可能獨(dú)立,必然為統(tǒng)治階級(jí)利益服務(wù)；同時(shí)在社會(huì)治理層面,在統(tǒng)治階級(jí)取得政權(quán)后,為維護(hù)社會(huì)政治穩(wěn)定等重大階級(jí)利益,實(shí)現(xiàn)本階級(jí)利益最大化,必然要實(shí)行獨(dú)立審判(審判獨(dú)立、司法獨(dú)立),達(dá)成審判自由,實(shí)現(xiàn)司法權(quán)威,這符合人民主權(quán)原則、國(guó)家分權(quán)制衡、反對(duì)集權(quán)專制及其他權(quán)力對(duì)審判權(quán)僭越的時(shí)代潮流,符合審判只有獨(dú)立中立親歷才能查清事實(shí)的事理規(guī)律和只有依法自由思考才能形成公正的內(nèi)心確信的思維規(guī)律；符合追求公平正義和人的自由解放的審判目的；獨(dú)立審判包括法院獨(dú)立、陪審法庭獨(dú)立、法官獨(dú)立等內(nèi)容；獨(dú)立自由審判必須要有審判民主、審判公開和審判監(jiān)督作保障；審判獨(dú)立必將隨著生產(chǎn)力的發(fā)展而發(fā)展、隨著國(guó)家的消亡而消亡等。馬克思恩格斯從西方資本主義關(guān)于司法獨(dú)立的理論和實(shí)踐中吸取了營(yíng)養(yǎng),但也深刻揭露了資產(chǎn)階級(jí)司法絕對(duì)獨(dú)立的虛偽性。本文對(duì)審判實(shí)踐中碰到的各種影響制約阻礙人民法院(法官)獨(dú)立審判的因素進(jìn)行了歸納分析,如傳統(tǒng)社會(huì)人情關(guān)系無(wú)處不在的干擾,案多人少,審判能力不足,法院保障“地方化”導(dǎo)致易受制于地方政府,其他機(jī)關(guān)不當(dāng)干預(yù),政法系統(tǒng)內(nèi)部“配合有余而制約不足”,法院內(nèi)部審判管理權(quán)、審判監(jiān)督權(quán)和行政管理權(quán)對(duì)審判權(quán)的不當(dāng)干預(yù),法官職業(yè)保障不力,法官職業(yè)道德素質(zhì)不高,裁判不公、審判的效率效果不夠好、司法腐敗導(dǎo)致司法權(quán)威不高,司法公信力不夠等,都是目前改革需要重點(diǎn)關(guān)注的問(wèn)題。本文認(rèn)為,獨(dú)立審判改革應(yīng)從外部、內(nèi)部?jī)蓚�(gè)方面同時(shí)推進(jìn)。關(guān)于外部改革,主要設(shè)想一是要平衡人民代表大會(huì)制度下“一府兩院”政治地位,將各級(jí)法院機(jī)構(gòu)確立為同級(jí)政府同級(jí)或副職級(jí)規(guī)格；二是以立法規(guī)范黨對(duì)法院工作的領(lǐng)導(dǎo),列明權(quán)力正面負(fù)面清單,特別是對(duì)個(gè)案的權(quán)力清單,從而在政治層面加強(qiáng)和改善黨的領(lǐng)導(dǎo),在社會(huì)治理層面嚴(yán)格尊重獨(dú)立審判、司法權(quán)威；法院的人財(cái)物由全國(guó)人大預(yù)算、國(guó)家財(cái)政保障；政府不干預(yù)審判,依法積極參與行政訴訟,尊重審判權(quán)威；立法規(guī)范人大、政協(xié)、工青婦等群團(tuán)社會(huì)組織對(duì)審判活動(dòng)的監(jiān)督關(guān)系；特別應(yīng)立法規(guī)范新聞?shì)浾撁襟w包括互聯(lián)網(wǎng)新媒體對(duì)審判活動(dòng)的監(jiān)督關(guān)系,禁止其對(duì)審判活動(dòng)不當(dāng)干涉干擾,防止輿論審判；立法建紀(jì)禁止中共黨員和國(guó)家公職人員對(duì)審判活動(dòng)的不當(dāng)干預(yù)干擾；三是法院人財(cái)物保障和管理與市縣兩級(jí)政府脫鉤,從長(zhǎng)遠(yuǎn)看應(yīng)由中央保障管理；四是建立與行政區(qū)劃適當(dāng)分離的審判管轄制度；五是改革完善人民陪審員制度。關(guān)于內(nèi)部改革,一是法官精英化改革,確保法官有能力有職業(yè)道德獨(dú)立公正審判,加強(qiáng)法官職業(yè)保障,確保法官敢于獨(dú)立審判,改革和強(qiáng)化法官懲戒機(jī)制,保證法官獨(dú)立審判的公正效果；二是改革落實(shí)“合議制”為核心的審判權(quán)配置；三是探索主審法官辦案責(zé)任制改革；四是改革審判管理權(quán)、審判監(jiān)督權(quán)和法院行政管理權(quán),保證三權(quán)不侵犯審判權(quán)的行使；五是改革規(guī)范上下級(jí)法院審級(jí)關(guān)系,確保上下級(jí)法院審判權(quán)獨(dú)立運(yùn)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.
【學(xué)位授予單位】：華中師范大學(xué)
【學(xué)位級(jí)別】：博士
【學(xué)位授予年份】：2016
【分類號(hào)】：D926.2
，
本文編號(hào)：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.
【學(xué)位授予單位】：華中師范大學(xué)
【學(xué)位級(jí)別】：博士
【學(xué)位授予年份】：2016
【分類號(hào)】：D926.2
，
本文編號(hào)：2244320
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