精英化与专业化的迷失——法官员额制的困境与出路

The Loss of Elitism and Specialization—— Dilemma and Outlet of the Judge's Post System

我国近些年来司法改革所欲达到的目标是司法职业化或者精英化、专业化,法官员额制或者分类管理属于其中的核心内容。员额制本来是一种将审理权及裁判权归位的一项制度,在现实中却异化为各种利益的角力,其中关系到国家的利益、法院管理层的利益及法官个体的利益,甚至法官助理和书记员的利益也牵涉其中。因此,法官员额制或者分类管理目标的实现过程,其实也是各种利益的平衡过程。因此,对于法官员额制目标是否实现的问题,应当溯本求源,探求员额制背后的制度设计及相关支撑原理的契合度。针对员额制的问题,解决进路应当是综合性的,其中既包括法官员额制遴选的去行政化,也应当包括根据原则性与灵活性相结合的原则确定员额数(员额比)、遴选标准或方式等基础性内容。同时,还需要针对性地设计员额制的配套制度,从而使得法官员额制成为一种系统或者有效运行的整体,而不使之产生互相掣肘、割裂的碎片化现象。

In recent years,the goal of judicial reform in China is to achieve the goal of judicial professionalism or elite,specialization,and the system of judge＇s post or classification management is the core content.The system of judge＇s post is a jurisdiction regression of the judge,in reality it is the alienation of the various interests of the struggle,which is related to the interests of individual judges and the interests of the state and court management＇s interests,and even the interests of judge assistant and clerk involved in. Therefore,the process of realization of the system of judge＇s post or classification management is also the process of balancing various interests. And the judge＇s post system is not in full swing,it has been faced with a series of negative phenomena or problems. Of course,on the judicial elite loss,substitution of court organization,target reverse elimination of judge selection,the declined efficiency / quality of the post system,it in fact is related scientific and reasonable ways of it,and the related theory is fitting for an external phenomenon reality or not. Therefore,the problem of whether the target of post system of judges should be achieved,we should explore the system design of it and the consistency of the relevant supporting principles. According to the problems of post system,the approach should be comprehensive,which includes not only the selection system of judges,should also include determine member volume（ post ratio） according to the principle of combination of principle and flexibility,the selection criteria,and so on. At the same time,we also need to design supporting system of it,which makes the system of judges as a whole or the effective operation of the system,and not to produce contradictory and fragment.