中國內地法院法官會議制度研究

Abstract

Aimed at achieving a rational return of the law of justice, the current judicial reform is intended to abandon the bureaucratic factors in the operation of traditional judicial power, and remove the inherent malpractices that "a judge tries cases but does not issue verdicts" and truly “allow the trying judges to adjudicate and be accountable". A suitable means to fulfill this vision is to make the sole judge or collegiate panel to fully exercise the power of adjudication in the trials and safeguard their independence in performing their duties. In the circumstance and against this background, however, the local courts have generally developed a keen interest in exploring the system of judge conference, which is also acknowledged and encouraged by the Supreme People’s Court through internal documents. Is this an inevitable continuation and deepening of the reform, or a distortion and reversion of the overall direction of judicial reform? Undoubtedly this author inclines to believe that it is the former, which is also the reason that this author chose this research topic and remains optimistic about its development prospects. With six chapters, this dissertation carries out in-depth discussions on the emergence, development and structure of the judge conference system in the courts of mainland China:

In the first chapter, this author considers that the idea of the current judicial reform is a logical extension of the high expectations for judicial competency and professional ethics of judges, but from the perspective of the mainland courts, the overall judge team has not yet attained high level of professionalism. In fact, the judicial competency and professional ethics of some judges are below the standard, posing high risks of judicial corruption. At the same time, the traditional judicial supervision model, which relies solely on supervision by the president of court, chief judge of tribunal or judicial committee, is no longer in line with the current requirements for reform of the judicial accountability system, which is exactly the reason for establishing a system of judge conference.

In the second chapter, the author starts with the practical necessity of constructing a system of judge conference and considers that such multi-person decision-making model will form an effective professional restraint mechanism, which may prevent judicial arbitrariness. It is worth noting that in the current legal system, the people's courts are the competent organs to exercise independent judicial power. Only could a sole judge, collegial panel or judicial committee, as a statutory adjudication body, have their opinions elevated to that of the people's court and issued as judgements in the name of the courts, would they have the legal force. This institutional arrangement leaves reasonable rooms for judicial supervision and management. Bridging the gap between judicial power, management power and supervision power through the operation of judge conference constitutes an important aspect of the current judicial reform.

In the third chapter, the author conducts a comprehensive and multi-sample systematic study on the operational mechanism of the judge conference in the courts of mainland China, from macro, meso and micro levels to the organizational structure, scope of conduct, rules of procedure and other accommodations of the judge conference. Guided by the issue-based principle, this chapter also examines the existing dilemmas systematically.

The fourth chapter is a comparative legal research. Some countries of civil law system and common law system have also established advisory bodies on judicial decision-making to meet the special need of the requirement of judicial process. Although these decision-making organizations of ultra-jurisdictions are fundamentally different from the judge conference in mainland China, their internal mechanism, scope of application, operating system and other institutional elements are worthy of references in the process of promoting and improving the judge conference system in mainland China.

In the fifth chapter, the author makes a comprehensive, statistical and in-depth analysis of the judge conference piloted at “S Court” of “J Province” in 2018, specifically in terms of the number of meetings, participants and functionality. Existing problems are examined and recommendations for improvement are also made.

In the last chapter, the author emphasizes that the current judicial reform should take into consideration of the reality of the courts in mainland China and based on a systematic review of the existing practices and reasonable reference to similar mechanisms of the extra-jurisdictions, re-examine the theoretical basis of the judge conference, scientifically determine the specific functions of the judge conference system, and systematically restructure the judge conference procedures. To break the ice, this author gives a brief introduction to the pioneer "Rules on the Judge Conference" of the Suzhou Intermediate People's Court and outlines the "Suzhou Resolution" for reconstruction of the judge conference system.

In the conclusion, this author opines some key points by analyzing the nature of the "advisory opinions", "reference opinions", "suggestions", etc., and based on such analysis which may not be necessarily complete or perfect, proposing that the conclusive views of the judge conference should be characterized as "instructive opinions", which is novel. The feasibility and necessity of the proposal are articulated from four perspectives.

Date of Award	5 Aug 2020
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Feng LIN (Supervisor)