【作者】 王娟；

【导师】 高军东；

【作者基本信息】 河南师范大学 ， 法学， 2020， 硕士

【摘要】 我党在十九大作出一系列新要求新部署,同时也对法院司法改革工作作出总体规划,如椽巨笔擘画新时代法院依法独立行使审判权的“路线图”。尽管在改革方案以及方案的实施中对法院依法独立行使审判权进行了积极的调整,但由于改革的复杂性,直至当下法院依法独立行使审判权这一目标仍然没有完全实现,依然存在着无法回避的问题,特别是改革在“去行政化”方面呈现出来的状态,都不完全符合社会各界的某些期待。无法否认的事实是,革除影响法院依法独立行使审判权的潜规则,并非一朝一夕就能解决,但当前我国正在进行的每一项司法改革举措,无论将案件的审理、决定权力下放给主审法官,抑或实行法官员额制,还是加强法官职业保障,将行政化对审判权运行的影响减到了最小,正是在此意义上来看,改革所起到的正面作用是值得肯定的。基于这样的现状,由于改革在某种程度上呈现出对主审法官依法独立行使审判权的趋从,主审法官依法独立行使审判权再度被理论界提起,自然而然地转换为改革的基本方向或终极目标。特别是“让审理者裁判、由裁判者负责”的内在逻辑,成为论证主审法官依法独立行使审判权正当性的主要依据。显然,这种改革思路突破了《宪法》第131条的这一认知,这使得法院依法独立行使审判权这一看似清晰的结论又被拉回到混乱之中,带来了新的理论难题。特别值得注意的是,这两种依法独立行使审判权都是法院建构与运行的基本模式,不等同于西方司法独立,体现了不同主体在法院内外格局中的重心或基础地位。与此相应,尽管两种依法独立都是司法审判功能的承载和履践,实则价值之异,影响和阻碍着人们对于审判运行模式乃至改革方向共识的形成。有鉴于此,亟需澄清这些理论认识,判断法院依法独立行使审判权改革过程中各种理论与实践的是非。于是,通过对司法改革效果的阶段性评估与诊断,可以发现,审判权从法院集体把关过渡到主审法官独立行使并不能革除影响审判权恰当、有效行使的主要问题。恰成对照的是,审判权力下放导致审判质效的波动,追责机制不足以对法官构成约束,员额制未造就精英化法官。应当说,我国并不具备实现主审法官依法独立行使审判权的社会条件和社会基础,即便从长远的看,审判主体由集合式转向个体式也不可能成为我国制度和实践的选择。为此,我国法院改革的目标方向应是在法院依法独立行使审判权的基础上,从院庭长主导过渡到以主审法官为主导,而不是审判权从法院集体把关转换为主审法官独立行使。因此在实践中,法院依法独立行使审判权的实现路径亦必须遵循这一理念,要注重对突出主审法官在审判中的主导地位与加强审判监督管理的双重强调,以期让“法院更像法院,司法更像司法”。更多还原

【Abstract】 Our party made a series of new requirements and new arrangements in the 19 th national congress,and also made an overall plan for the judicial reform of the court,such as drawing a "road map" for the courts to exercise judicial power independently in the new era according to law.Although the reform plan and the implementation of the plan have made positive adjustments to the independent exercise of the court’s judicial power in accordance with the law,due to the complexity of the reform,until the current court’s independent exercise of the judicial power in accordance with the law,the goal has not been fully realized,and it still exists.The problems of reform,especially the state of reform in "de-administrative",are not in full compliance with certain expectations of all sectors of society.The fact that cannot be denied is that the removal of the hidden rules that affect the court’s independent exercise of judicial power in accordance with the law cannot be resolved overnight,but every judicial reform initiative currently underway in our country,regardless of whether the trial and decision of the case are delegated to the trial judge or to implement the legal official quota system,or to strengthen the professional security of judges,to minimize the impact of administrative on the operation of judicial power,it is in this sense that the positive role played by the reform is worthy of recognition.Based on this status quo,since the reform presents a tendency to exercise the judicial power of the presiding judge independently according to law to some extent,the presiding judge’s independent exercise of judicial power according to law has been brought up again by the theoretical circles,and naturally transformed into the basic direction or ultimate goal of reform.In particular,the internal logic of "letting the judge to be judged and responsible by the judge" has become the main basis for demonstrating the legitimacy of the trial judge’s independent exercise of judicial power according to law.Obviously,this reform thinking breaks through the recognition of Article 131 of the Constitution,which makes the seemingly clear conclusion that the courts independently exercise the judicial power according to law have been pulled back into chaos,bringing new theories.problem.It is particularly worth noting that these two types of independence according to law are the basic models for the construction and operation of courts,and are not equivalent to western judicial independence.They reflect the focus or basic status of different subjects in the internal and external court structure.Correspondingly,although the two types of independence according to law are both the carrying and performance of judicial trial functions,the differences in actual values affect and hinder the formation of consensus on the mode of trial operation and even the direction of reform.In view of this,it is urgent to clarify these theoretical understandings,and to clarify the various theories and practices of the court’s independent exercise of judicial power in accordance with the law.Here,through the periodic evaluation and diagnosis of the effects of judicial reform,it can be found that the transition of the trial right from the collective control of the court to the independent exercise of the trial judge cannot remove the main problems that affect the proper and effective exercise of the trial right.In contrast,the decentralization of trial power has caused fluctuations in the quality of trials,the accountability mechanism is not sufficient to restrain judges,and the post system has not created elite judges.It should be said that China does not have the social conditions and social foundations for the trial judge to independently exercise his trial power in accordance with the law.Even in the long run,the transition of the trial body from the collective to the individual may not be the choice of our system and practice.For this reason,the goal of the reform should be based on the independent exercise of the court’s judicial power,from the presidency of the court to the trial judge,rather than the direct transition of the court’s collective control to the independent trial of the trial judge.Therefore,in practice,the realization path of the court’s independent exercise of judicial power in accordance with law must also follow this concept,and we must pay attention to the double emphasis on highlighting the leading position of the trial judge in the trial and strengthening the trial supervision and management,with a view to making the "court more like a court,Justice is more like justice."更多还原