【作者】 米勇；

【导师】 石少侠；

【作者基本信息】 吉林大学 ， 法学理论， 2009， 博士

【摘要】 法官职业化建设在中国是一个长期的历史的过程,其基础和关键是建立科学严格的法官遴选制度。建立法官遴选制度的意义在于,摒弃法官职业准入的随意性和大众化,严格法官队伍的“入口”,一方面确保准入的人员具有良好的条件、较高的素质;另一方面确保不合格的人员进不了法院,当不了法官。没有严格的法官遴选制度,就不可能保证法官的高素质,更谈不上法官的职业意识、职业道德、职业技能和职业形象。因此,建立一套科学、规范、符合中国国情的法官遴选制度,是推进法官职业化改革和确保司法公正的基础和首要任务。同时,法官遴选也是进行法院人事制度改革、实行分类管理的重要内容之一。本文基于对法官遴选制度的理想的制度设计,采用实证分析、历史分析和比较分析的方法,在对西方法治发达国家特别是英美法系和大陆法系国家法官遴选制度及经验进行比较研究的基础上,从应然的角度,深入阐释了法官职业化背景下推进我国法官遴选制度改革的目标和路径选择;并对确立法官员额制度、法院职位分类管理、法官资格要素的重新界定、法官遴选机制的创新以及建立职业保障制度等问题进行理论上的探讨;进而从司法实践角度对我国法官遴选制度中一些具体制度的改革提出了建议。更多还原

【Abstract】 The construction of the professionalization of judge is a long historical process; the selection system of judge is its base and key. The main idea is that, in order to keep the high quality of judges, a judge’s commission should not be casual and popular. It is impossible to make a group of outstanding judges with professional consciousness, morality, skill and image, without a strict selection system. Therefore, to construct a scientific, standard selection system of judge, which fit for Chinese actual conditions, is the most important task of promoting the professionalization of judge and ensuring the judicial just. The selection system of judge is an important content of court’s reform of personnel administration at the same time.This thesis bases on the ideal designing of the selection system of judge, gives a clear explanation of the goal and the selection of approach of reforming the system of judge in China; redefines the system of judge’s specified number of personnel, classified management of posts in court and the essential factor of the judge’s quality; makes a theoretical discussion on the creation of the system of judge and the construction of professional ensure system; and then puts forward some specific proposals of the reform of the selection system of judge. The author uses the methods of analyzing the real fact, historical analyze and comparative analyze, by contrasting the system and experience Continental law system with Anglo-American Law system. The thesis consists of five chapters.Chapter one, the author states the base and function of the selection system of judge. In this chapter, the author explains the meaning and the main function of the selection system of judge, and points out that the main function is to guarantee the judges selected have higher quality and capacity to exercise the judicial authority correctly and fairly. Chapter two, the author discusses the relationship between the selection system of judge and the professionalization of judge. He points out the present situation of judges, their status and their characteristics of multiple role in China, he mentions the professionalization of judge is the inevitable trend of the role change of judge in China that is to say from a multiple role to a purely judicator, from a referee of state to a neutral judicator between society and state, from an official to a neutral judicator, it is the internal demand of the modern administration of justice. Furthermore, the author explains the necessity and possibility of the reform of the professionalization of judge in China, and suggests that to set a scientific and strict selection system of judge is the base and key of the professionalization of judge, and the recent goal of the reform. At the same time, the author discusses the relationship between the selection system of judge and the professionalization of judge, he points out that the selection system of judge is the inexorable demand of the professionalization of judge, and gives full scope to the professionalization of judge. And the professionalization of judge eagerly looks forward to the goal and route of the reform of the selection system of judge.Chapter three, the author compares and analyzes the selection system of judge of different genealogy of law, by investigating the concrete content and basic structure of the selection system of judge in German, Japan, UK, USA. The author compares the common ground and the differences of the two different genealogies of law, and their cause of formation. In this chapter the author points out the general law and pattern of the selection system of judge in the world, and summarizes as“five conditions, one procedure”, in order to guarantee judges selected have higher quality and capacity to exercise the judicial authority correctly and fairly.Chapter four, the author reviews the history of the selection system of judge in China, and analyzes the present situation. First, the author introduces the selection system of judge around the 1950’s, and points out that the coursing of the present situation is not historical. Because the selection of judge always was much valued in Chinese history, especially in the end of Qing dynasty and the Republic of China era, the selection system of judge is more advanced than today. The historical development of the selection system of judge has three characteristics: first, judge and administrator went form combined to separated; second, the selection of judge went from popular to professional; third, the qualification of judge adapted to the trial-grade. In this chapter, the author also discusses the legislative origins, theoretical basis and defect of present selection system of judge. At the end of this chapter, the author suggests that the present problems of the selection system of judge in China. First, the requirement of the educational background of junior judges is low; Second, more importance is put on book knowledge than law professional experience; third, the procedure of the selection of judge is not perfect; forth, there is lack of promotion system. Although there is obvious improvement about the selection system of judge by the historical view of point, but there still some problems, which affect the quality of trail and the whole intrinsic of judges, and even affect that whether the judiciary is fair. So, the present selection system of judge in China must be perfected.Chapter five, the author put forward the basic compose of perfecting the present selection system of judge in China. First, the author discusses the possibility and necessity of reform by deeply analyzing the realistic base, historical opportunity and affective factor. Then, considering the goal and the selection of approach of reforming the system of judge in China. The author points out that the goal of reforming the selection system of judge in China should be differentiated as the present goal and the long-term goal. The present goal is to select the elite of law and heighten the quality of judges. The long-term goal is to promote the professionalization of judge and ensuring the judicial justice. The author puts forward the basic structure and concrete measure of the selection system of judge in China. First, the author considers that the system of judge’s specified number of personnel, classified management of posts in court should be the presupposition and base of the reform of the selection system of judge. He mentions the standard of the classifying of the judge posts, the necessity and the basis of the system of judge’s specified number of personnel. Second, he puts forward to the idea of the quality of judge selected, which should have scientific attitude, professional knowledge especially, with good character, an important support of fair. Third, he perfects the design of the selection system of judge, establishes the procedure of selection. Forth, he puts forward the idea of establishing the judge career circumstances. By the system of professional guarantee and the system of punishment and supervision, judge’s behavior can be regular, and realize the judicial fair, safeguard the whole image of judge and provide good professional circumstances of the selection of judge.更多还原