我国法院设置体制改革问题研究

【作者】 王波；

【导师】 苗连营；

【作者基本信息】 郑州大学 ， 法律， 2005， 硕士

【摘要】 目前,我国的法院除了各专门法院及军事法院的设置外,主要分为四级,即基层、中级、高级人民法院和最高人民法院。按行政区划设置的地方各级法院,实行的是块块领导,司法管辖区域从属于行政管辖区域。除最高人民法院是由中央设置并由中央财政拨付经费外,其他各级人民法院都分别由各级地方解决其人财物。尽管宪法明确规定人民法院依法独立行使审判权,但这仅是就其业务或职责而言的,至于法院的组织关系、人事管理、办案经费、物资装备等方面,则均由地方负责。虽然人民法院组织法规定下级人民法院的审判工作受上级人民法院监督,但这种纯粹业务上的监督关系,在与人、财、物三权分离的情况下,由于缺乏实质性的内容,往往起不到应有的作用。 党的十六大明确提出了推进司法体制改革的任务和目标,强调“社会主义司法制度必须保障在全社会实现公平和正义”。要实现这一目标,必须进行司法体制改革。本文从我国法院设置体制历史沿革入手,通过对英美法系和大路法系法院设置体制考察和比较研究,旨在提出当前我国法院设置体制中存在的法院地方化和行政化的问题,并在此基础上构建我国法院设置体制改革的基本框架,提出改变目前按照行政区划设置法院、司法与行政辖区完全重合的方式,建立摆脱地方行政干预制约的法院设置体制。 本文由引言、正文和结语三部分组成。其中正文部分分为四章。 第一章主要论述我国法院设置体制的历史沿革及其现状。本章首先对我国法院设置体制的历史包括古代审判机关设置体制、清末至新中国成立以前的审判机关设置体制、新中国法院设置体制做了综合回顾,然后就法院的产生、组成和任期,法院的分类、组织和职权,法院管理体制三个方面对我国法院设置体制的基本现状展开论述,通过考察历代司法机关的变迁,得出我国法院设置体制不合理的历史渊源。更多还原

【Abstract】 Nowadays,the court system of china, but for military and the special, can be divided into four levels: the elementary, the junior, the senior and the supreme court. All the local courts are under the leadership of the government of the local districts that they are set according to, and the judicial range is also affiliated to the administrative district. But for the Supreme Court, set and financed by the central government, all the other courts are supported not only human employing, but also finance supplying, by the relative local government. Although it is clearly prescribed in the constitution, that the court has the right of carrying out the jurisdiction, it is under the control of local government in various fields from the organizing, managing of human resources, supplying of finance to material equipment. Another aspect is the supervision right of jurisdiction of the superior to the inferior courts, though, it is also clearly prescribed in the Organizational Law of court, such mere inner operative business is still of no effect very often when the rights of employment, finance and material resources are under the state of being separated from one another.The task and aim of promoting the judicial system reform is proposed during the 16th National conference of the Party and it emphasized that our socialist judicial system should guarantee the realization of fairness and justice of the whole society. To achieve such a destination, we have to reform the judicial system. This thesis is to disclose the defects of the localization and administrative in the setting-up system of court in China by means of reviewing its historical forms and studying the ways taken by other Law Families— the Britain & American. Law Family andthe Roman law Family. Hence, I will give out my reforming assumption of how to reconstruct the system of court setting, how to change the complete superposition of jurisdiction and administration in region and how to get rid of the interference of the system of court setting from the local government.The thesis consists of three parts; the introduction, the body and the ending, among which the body includes four chapters.In chapter one I mainly treats of the history and current situation of the setting — up system of court in our country. In this chapter, I, at first, review the history of it in china, including the setting — up system of the trial dynasty to the foundation of the People’ s Republic of China, and in the People’ s Republic of China. And then, I treat of the system of that in our country from the following aspects — the origin, organization and term; the classification, departments and authority; and the operation of the court. As a result of the previous studying, I come to the original causes of the unreasonableness of the system.In chapter two, I compare it and study it from home to abroad. On the basis of the longitudinal analysis, this chapter deals mainly with that of German, France and Japan. By means of the transverse comparison between the two famous Law Families, I dig out the gaps from four aspects of various countries, which are : the judicial authority of the court, the management system of the civil service, the guarantee system of finance and of judges.In chapter three, I sum up the defects of that of China. On the basis of the first exist two chapters, I come to the standpoint that there exist localization and administrative — ization defects in the setting — up system of court in China. And then, I list out every trial of all aspects and analyze the original causes, and make a detailed explanation and a suggestion, about the reform of it. On the previous basis, I raise a series of guiding suggestion on the future of reforming it form theaspect of legislation, which is based on legislation guarantee, patterns of administration and finance support, and thus to complete the reconstruction of that of china, with our focus on the adjusting of arrangement of judicial communities and improving of the longitudinal division.更多还原