法官任职回避“单方退出机制”的反思
发布时间：2018-11-02 12:15
【摘要】：近年来，有关司法不公的案例屡屡出现于报纸、网络，引发了广大人民群众对司法公正的质疑。之所有出现这种局面，固然与媒体的放大效应有很大关系，但也反映出了在司法实践中“关系案”、“人情案”仍然存在，法官与担任律师的亲属也非常容易出现利益输送。在这种情况下，最高人民法院为了保障司法公正，增强司法的公信力，2011年2月10日印发了《最高人民法院关于对配偶子女从事律师职业的法院领导干部和审判法官实行任职回避的规定》（以下简称《规定》）的通知，要求人民法院领导干部和审判、执行岗位的法官，其配偶、子女在其任职的法院辖区内从事律师职业的，应当实行任职回避，即调离审判岗位，，实行“单方退出”。 这一规定虽然在短时期内取得了一定的效果，但在涉及法律职业的从业限制问题上，这一规定的合法性、规范性、正当性还有待商榷。法官任职回避的“单方退出机制”是我国司法实践领域中出现的新问题，对这一问题目前学界还没有比较系统规范的研究，只有一些媒体发表了短评，本文从法理方面对这一问题进行了初步的探究与反思，提出了一些替代性解决方案。
[Abstract]:In recent years, the cases of judicial injustice appear frequently in newspapers and internet, which arouse people's doubts about judicial justice. All this situation is related to the amplification effect of the media, but it also reflects the "relationship case" in judicial practice, and the "human favor case" still exists, and it is very easy for the judge and the relatives who serve as lawyers to convey the interests. Under such circumstances, the Supreme people's Court, in order to safeguard judicial justice and enhance the credibility of the judiciary, On February 10, 2011, the Supreme people's Court issued a notice on disqualification from office (hereinafter referred to as "regulations") of the leading cadres and trial judges of the court whose spouses and children are engaged in the profession of lawyers. Those who require the people's court to lead cadres and judges, their spouses and children who are engaged in the profession of lawyers in the jurisdiction of the court in which they serve shall withdraw from their positions of office, that is, they shall be transferred out of their judicial posts and "unilaterally withdrawn". Although this stipulation has achieved certain effect in a short period of time, the legality, standardization and legitimacy of this stipulation are still open to question. The "unilateral withdrawal mechanism" of judges' recusal from office is a new problem in the field of judicial practice in China. At present, there is no systematic and normative study on this issue in academic circles. Only some media have published short comments. This paper makes a preliminary exploration and reflection on this problem from the point of view of jurisprudence, and puts forward some alternative solutions.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.2
本文编号：2305982
[Abstract]:In recent years, the cases of judicial injustice appear frequently in newspapers and internet, which arouse people's doubts about judicial justice. All this situation is related to the amplification effect of the media, but it also reflects the "relationship case" in judicial practice, and the "human favor case" still exists, and it is very easy for the judge and the relatives who serve as lawyers to convey the interests. Under such circumstances, the Supreme people's Court, in order to safeguard judicial justice and enhance the credibility of the judiciary, On February 10, 2011, the Supreme people's Court issued a notice on disqualification from office (hereinafter referred to as "regulations") of the leading cadres and trial judges of the court whose spouses and children are engaged in the profession of lawyers. Those who require the people's court to lead cadres and judges, their spouses and children who are engaged in the profession of lawyers in the jurisdiction of the court in which they serve shall withdraw from their positions of office, that is, they shall be transferred out of their judicial posts and "unilaterally withdrawn". Although this stipulation has achieved certain effect in a short period of time, the legality, standardization and legitimacy of this stipulation are still open to question. The "unilateral withdrawal mechanism" of judges' recusal from office is a new problem in the field of judicial practice in China. At present, there is no systematic and normative study on this issue in academic circles. Only some media have published short comments. This paper makes a preliminary exploration and reflection on this problem from the point of view of jurisprudence, and puts forward some alternative solutions.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.2
【参考文献】
相关期刊论文 前1条
1 巩富文;中国古代法官责任制度的基本内容与现实借鉴[J];中国法学;2002年04期
本文编号：2305982
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