【作者】 胡晏诚；

【导师】 郑成良；

【作者基本信息】 吉林大学 ， 法学理论， 2008， 博士

【摘要】 在评述我国建国前后最高法院(建国前指中国共产党两个时期领导的地方武装政权最高司法机关)行使司法权状况基础上,论文对最高法院的权力角色和司法功能进行了比较全面的分析和论证。认为,摆正最高法院的角色,应首先确立最高司法权与国家最高立法权、最高行政权相互制约的角色关系,以及摆正与最高检察权的法律关系。这是充分发挥司法功能的基础。发挥最高法院的功能,包括在健全死刑复核制度同时,放弃民商二审案件的普遍管辖,建立严格的法律三审程序,来确保审判功能的有效发挥;坚持通过个案审判,张扬最高司法权对社会、法律问题的判断和阐述,以强化政策形成功能;放弃准立法性质的“司法解释”方式,坚持以个案为载体来统一对法律的认识和适用,并针对社会发展不平衡现状,建立一种“二元”法律适用标准体系实践法律统一功能;在完善制度(包括成立宪法委员会)的同时,扩大行政审判范围、增强审查深度是发挥权力制约功能的重要表现;通过死刑复核审、法律上诉审和申诉监督审,以及通过案件调查、专题调研等方式加强业务指导,实现对地方法院的监督、指导功能。为实现最高法院功能的充分发挥,实现大法官的精英化、终身制、高薪制、权力平等、提名制约和结构平衡是其完成司法权力使命的制度保障。更多还原

【Abstract】 With the progress of the national rule of law, the Supreme People’s Court (SPC), as the highest judicial organ has more and more important functions in politics, economy, and culture etc. in society today.What a role should SPC play in the national power organizations? And what kind of functions should it elaborate in an administering society? This dissertation studied SPC theoretically. The purpose is to get some beneficial functions in developing rule of law and improving national system.In the first part, three chapters reviewed the development condition of the supreme judicial organization in the local democracy magistracy led by the Communist Party of China before the founding of the People’s Republic of China. It is beneficial to cognize the current institutional characteristics and laws of SPC.In the second part, 6 chapters studied the role of SPC playing in national organization and the functions in the national management.After defining the role and the functions of SPC, the dissertation studied the role of SPC in the organ of our state power. The conclusion is that in front of the National People’s Congress with dual powers, SPC had been produced by the National People’s Congress, but does not have the power of restricting legislature; however, it invades latter’s legislative power. The fact that SPC depends on the central finance has extremely weakened the degree of its power to supervise the central government. The law of the Supreme People’s Procuratorate having the power to protest SPC’s determination weakened the basic judicial principle of final judgment from SPC. The procuratorial power getting involved to the civil case is a typical expression of the civic power interfering the private right, and affecting court independent judgment. The dissertation studied the relationship between SPC and Chinese special political organization, the Chinese People’s Political Consultative Conference. It also studied the way and content of SPC led by the Communist Party of China, and pointed out its characteristics and laws.In this part, the dissertation investigated meticulously the functions of SPC. And it is known that as for herself interest, SPC could not actively try the cases with the most represent and meaning. Its judicial explanations which have substandard lawmaking form cover up almost its functions of making policies and the unified laws. Its administrative judgment also cannot undertake the function in restricting powers. And the current regulation of judicial control and proceeding limits the try of typical cases by SPC and restricts supervision and guidance to local courts. It is considered that SPC’s jurisdiction still do not get away from the condition exercising administratively, presenting the number of much more judges, the dismembered power, handling cases in low efficiency, supervision in multiple layers, but nobody responsible for the job.In the third part, the article demonstrates how to adjust the power roles. 1. To establish the restrictive relationship between the supreme judicial power and the supreme legislative power, and the supreme administrative power. SPC extends her scope and degree in administrative judgment to restrict the governmental behaviors. 2. To adjust the legal relation between SPC and the Supreme People’s Procuratorate. It should be to establish the Supreme Prosecution Department under the State Council, and cancel the power to appeal SPC’s final determination. 3. The dissertation summarized the ways in judicatory led by the Communist Party of China to follow the law, to lead and depend on her members.For its role and functions, SPC must adjust its structure : setting Panel and En Banc to try the cases, and system of justce is a better way. The constitutional committee set in SPC can examine the laws by the National People’s congress and rules by the State Council if they are in line with the constitution and explain the constitution;To realize the system of the elite of justice, lifelong tenure, high salary system, equal power , restricted nomination and balance construction.At the point of modeling the functions of SPC, the dissertation believes that we should improve capital punishment judicial review system, abdicate the jurisdiction to civil appeal cases. Establishing a procedure system for third legal try step develops its policy formation functions by her precedents. Case judge takes the place of the way of "judicial explanation" to guide the judicatory of the whole country. Establishing the "dual standards" system realizes the law unified function. The scope and degree of the administrative judgment should be extended. And the procedures of capital punishment review, appeal to a higher court and complain perform the supervision and guidance to the lower courts.更多还原