我国法官助理制度试行反思

发布时间：2018-06-06 05:17

本文选题：法官助理制度 + 困境　；参考：《湘潭大学》2011年硕士论文

【摘要】：为了实现法官的职业化建设,最高人民法院决定为法官配备法官助理和取消助理审判员的工作进行试点。这一从国外移植而来的制度与我国的助理审判员制度有着怎样的异同之处呢试行多年之久,改革的成效又如何呢不容置疑,法官助理制度的实行取得了一定的积极效果,但是随着法官助理制度的逐步推进,其所遇到的阻力与困境也逐渐的显现出来,诸如法官助理制度的法律瓶颈问题,与我国现行诉讼法律制度的冲突问题,实践之中所遇到的法官助理制度价值偏差问题、法官助理来源问题以及法官助理队伍稳定等问题,让我们不得不冷静的思考与分析这一从国外移植而来的制度,为什么在我国实行会遇到诸多的困境。笔者从法律制度移植的视角对其加以了分析和反思,认为我国没有司法职业精细分工的传统和完备的法官制度在一定程度上阻碍了法官助理制度优势的集约化发挥,而且这一从国外移植而来的制度也与我国现行的法律法规和诉讼制度发生冲突,明显改革的阻力比较大、成本也比较高。对此,笔者基于法官助理制度与助理审判员制度之异同,提出了法官助理制度向助理审判员制度回归的设想,并从尊重“本土资源”和趋向帕累托改进两个方面分析回归的必要性,从法律制度为依据和自身优势为依托两个方面分析回归的可行性。笔者认为回归于助理审判员制度并对其不足和缺陷进行健全和完善,显然改革的阻力和冲突都会小一些,改革的道路也会顺畅一些,更有利于法官职业化建设。为了实现助理审判员制度的价值功能,笔者针对其存在的问题,提出了正确认识助理审判员制度,提高助理审判员的学历要求,提高助理审判员的职务晋升工作年限,明确助理审判员的具体职责,细化程序规范、改革庭前准备程序等内容。
[Abstract]:In order to realize the professionalization of judges, the Supreme people's Court decided to carry out pilot projects for judges to be equipped with assistant judges and to cancel the work of assistant judges. What are the similarities and differences between this system transplanted from abroad and the system of assistant judges in our country? it has been tried for many years, and the effectiveness of the reform is beyond doubt. The implementation of the system of assistant judges has achieved certain positive results. However, with the gradual advancement of the assistant system of judges, the obstacles and difficulties encountered by the system have gradually emerged, such as the legal bottleneck of the assistant system of judges, and the conflict between the legal system of our country and the current system of litigation. The problems encountered in practice, such as the deviation of the value of the assistant system of judges, the source of the assistant of the judge and the stability of the assistant team of judges, make us have to calmly think and analyze this system which has been transplanted from abroad. Why in our country will encounter a lot of difficulties. From the perspective of legal system transplantation, the author analyzes and reflects on it, and thinks that there is no tradition of fine division of labor in judicial profession and a complete judge system in our country, which to some extent hinders the intensive exertion of the advantages of the system of assistant judges. Moreover, the system transplanted from abroad also conflicts with the current laws and regulations and litigation system of our country. The obvious resistance to reform is relatively large, and the cost is also relatively high. In view of this, based on the similarities and differences between the assistant judge system and the assistant judge system, the author puts forward the assumption of returning the assistant judge system to the assistant judge system. It also analyzes the necessity of regression from respect for "local resources" and the trend towards Pareto improvement, and analyzes the feasibility of regression from two aspects: legal system as the basis and self-advantage as the basis. The author thinks that if we return to the system of assistant judges and improve its shortcomings and defects, obviously the resistance and conflict of reform will be smaller, and the road of reform will be smoother, which is more conducive to the professionalization of judges. In order to realize the value function of the assistant judge system, aiming at its existing problems, the author puts forward the correct understanding of the assistant judge system, the improvement of the education requirement of the assistant judge, and the working years of the post promotion of the assistant judge. Clarify the specific duties of the assistant judges, refine the procedural norms, reform the pre-trial preparation procedures.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.2

【参考文献】