我国人民陪审员制度存与废的再思考

发布时间：2018-04-26 02:31

本文选题：人民陪审员制度 + 存与废　；参考：《湖南大学》2011年硕士论文

【摘要】：按照通说,我国实行的人民陪审员制度是在吸收西方陪审制度合理内核的基础上,结合中国客观实际所形成的具有中国特色的司法制度。其内涵是,人民陪审员依法参加人民法院的审判活动并与法官享有同等的审判权。这一制度目的是要促进司法民主、保障司法公正、扼制司法腐败；同时,该制度还被视为提高社会大众法律意识的有效手段。然而,该制度在实践运行中的状况昭示,尽管人民陪审员制度对促进司法公正,加强司法监督起到一定的积极作用,但仍存在着种种问题值得我们深刻反思,如在立法上,作为一种基本的司法制度,《宪法》却没有相应的规定；人民陪审员的审判权与《人民法院组织法》规定的法官审判权相抵触；人民陪审员遴选的精英化,不能真正体现陪审员选举的平民性与普遍性；陪审案件范围规定的欠合理性；陪而不审的“陪衬”摆设等。结合陪审制度的起源及其在英美法系、大陆法系国家的历史发展及现状,对我国人民陪审员制度进行考察,在比较研究的基础上,对人民陪审制内在的价值与功能进行较为全面和深入的分析,并论证人民陪审员制度是否切合我国的国情,有着较大的理论和现实意义。目前的客观情况是,我国是一个没有司法民主传统的国家,“人治”色彩浓厚,陪审制的实行势必带着强烈的“人情”倾向；与英美法系重视程序正义不同,我国法律更关注实体正义,对法条的如何适用,专业法官比人民陪审员有绝对优势；作为一个成文法国家,我国法律中存在大量的专业性较强的法律概念和条款,作为没有受过法律职业教育的人民陪审员难以正确理解；基于我国职权主义的诉讼模式,整个庭审活动都由职业法官主持,限制了陪审制度作用的发挥等在世界范围内,陪审制的衰退已经是普遍趋势,甚至在很多国家被完全取消。随着我国司法改革的进一步推行,我国司法审判的专业化要求更高,审判质量的提升更是大势所趋,人民陪审员制度的存在空间将进一步被压缩。因此,人民陪审员制度已无在我国继续保留或完善之必要,彻底取消该早已流于形式的制度是符合国情的正确选择,这必将有利于树立司法权威,有益于司法的良性发展。
[Abstract]:According to the general theory, the people's jury system in China is a judicial system with Chinese characteristics on the basis of absorbing the reasonable core of the western jury system and combining the objective reality of China. Its connotation is that the people's jurors participate in the trial activities of the people's court according to law and enjoy the same jurisdiction as the judges. The purpose of this system is to promote judicial democracy, to guarantee judicial justice and to curb judicial corruption, and at the same time, it is also regarded as an effective means to raise the legal awareness of the public. However, the situation of the system in practice shows that, although the people's jury system plays a positive role in promoting judicial justice and strengthening judicial supervision, there are still various problems worthy of our profound reflection, such as legislation, As a basic judicial system, the Constitution has no corresponding provisions; the judicial power of the people's assessors is in conflict with the judges' jurisdiction stipulated in the people's Court Organization Act; and the selection of people's jurors is meritocratic. It can not truly reflect the civilian nature and universality of jury election; the unreasonable of the scope of jury cases; the "foil" furnishings of accompany but not trial, etc. Combining with the origin of jury system and its historical development and present situation in Anglo-American law system and civil law system, this paper makes an investigation on the people's jury system of our country, on the basis of comparative study. It is of great theoretical and practical significance to analyze the intrinsic value and function of the people's jury system and to prove whether the people's jury system is in accordance with the national conditions of our country. At present, the objective situation is that our country is a country without the tradition of judicial democracy, the "rule of man" is strong, the implementation of the jury system is bound to have a strong "human" tendency, which is different from the common law system, which attaches great importance to procedural justice. The law of our country pays more attention to the substantive justice, how to apply the article of law, the professional judge has the absolute superiority over the people's jurors. As a statutory country, there are a large number of professional legal concepts and provisions in our law. It is difficult to understand correctly as the people's jurors who have not received legal professional education. Based on the litigation mode of our country's authority doctrine, the whole trial activities are presided over by professional judges, which limits the function of jury system and so on. Worldwide, jury decline has become a common trend, even in many countries have been completely abolished. With the further implementation of judicial reform in our country, the specialized requirements of judicial trial in our country are higher, and the improvement of trial quality is the trend of the times, and the space for the existence of the people's jury system will be further compressed. Therefore, it is no longer necessary for the people's jury system to be retained or perfected in our country. It is a correct choice in line with the national conditions to completely abolish the system which has already become a mere formality, which will be conducive to the establishment of judicial authority and beneficial to the benign development of the judiciary.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.2

【参考文献】