中國內地法院法官會議制度研究

The Judge Conference Mechanism in Mainland China and Its Future

Student thesis: Doctoral Thesis

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Award date5 Aug 2020

Abstract

以实现司法规律的理性回归为目标的本轮司法改革,意在摒弃传统审判权运行中的科层化因素,去除“审者不判、判者不审”的固有流弊,真正做到“让审理者裁判,由裁判者负责”。这一愿景目标的通达途径在于让独任法官、合议庭在案件审理中充分行使裁判权,保证其履职独立的人格地位。为何在这样的时势和背景下,各地法院却又普遍产生了对法官会议群体议案机制的浓厚兴趣和自发探索,最高法院也以文件等形式鼓励地方法院进行实践。此乃改革的必然延续和深化完善,还是对司法改革总体方向的扭曲变形和逆行背反?毫无疑问,我倾向于前者,这也是笔者选此作为研究课题并对其发展前景看好的原因所在。本文以六个章节对法官会议制度在我国内地法院的产生发展和反思重构进行了深入探讨:

在第一章中,笔者认为本轮司法改革的理念是基于当前我国对法官群体的司法能力和职业操守高预期下的逻辑延伸,但从内地法院的实际看,法官队伍整体尚未达到高度职业化和专业化的水准,甚至一些法官的司法品质和职业道德素养差强人意,难以抵御司法腐败的风险。而传统的单纯依赖院庭长或审委会研究把关案件的陈旧模式已不适合当下司法责任制的改革要求,而这正是建立法官会议的制度缘起。

本文第二章,笔者从构建法官会议制度的现实必要性出发,认为法官会议以多人决策的模式形成了一种有效的专业制约机制,可以避免司法的专断、擅断。必须指出的是,现行法律制度规定了人民法院是依法独立行使审判权的适格主体。独任法官、合议庭或者审判委员会只有将作为法定审判组织的意志上升为法院的整体意志,其裁判才能以人民法院的名义作出并产生法律效力。这种制度安排也为人民法院内部审判监督权和管理权的行使留下了合理的制度空间。通过法官会议弥合审判权、管理权、监督权三者之间的龃龉和隔阂,是本轮司法改革需要继续坚守和不断完善的一个重要方面。

在第三章中,笔者对我国内地法院的法官会议运行机制进行了多样本的系统研究,分别从宏观、中观和微观层面对于法官会议的组织架构、议事范围、议事规则以及配套程序等方面进行了全面梳理,并以问题为导向,对于存在的困境进行了系统化的提炼和归纳。

第四章是比较法意义上的研究,纵观大陆法系和英美法系等国家,它们在法院内部也附设有相关的案件决策咨询机构,用以满足案件审理的特殊需要。虽然从性质上而言,这些域外群体决策组织都与我国的法官会议有着显见的区别,但其内在机理、适用范围、运行体系等制度要素,值得我国内地法院在法官会议制度的推进完善过程中加以吸收借鉴。

第五章中,以作为本轮司法改革前沿和先行试点地区的J省S法院2018年度法官会议运行情况为样本进行综合统计分析,从会议次数、参会主体、职能发挥等方面进行了微观剖析,总结实践经验,以点及面提出存在问题和下一步的改进建议。

本文最后一章,笔者强调,新一轮的司法改革应当结合我国内地法院的审判实际,在系统回溯既往实践、合理借鉴域外法治国家类似经验的基础上,有必要重新审视法官会议的内在理论基础,科学厘定法官会议制度的具体功能,系统重构法官会议程序。作为引玉之举,笔者将苏州市中级人民法院率先出台的法官会议工作规则作了概略介绍,勾画了重构法官会议制度的“苏州方案”。

在全文结论部分,笔者展示了本文的核心观点,即对法官会议结论意见进行恰当定性,在分析现有“咨询意见”“参考意见”“建议意见”等相关观点不尽周延、更不妥帖的基础上,提出应将法官会议结论意见定性为“指导意见”的独家观点,并从四个方面论证其可行性和必要性。
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.

    Research areas

  • judge conference, operation mechanism of judicial power, judicial supervision and management power, judicial accountability system