比较法视野下的香港法官惩戒:制度、改革及评估

Judicial Discipline in Hong Kong from the Perspective of Comparative Law: System, Reform and Evaluation

惩戒法官与保障法官独立之间存在内部张力。英美法系的惩戒机构可以分为有惩戒权型和无惩戒权型。实践表明独立的法官惩戒机构只要组织架构设置得当,严格执行惩戒程序,则无损司法独立且能提升司法公信力。香港的法官惩戒制度属于两阶段模式,包括前置非法定机制和正式法定机制。近期,前置机制改革为两层架构,分化出受理、初审、调查、审议和决定五个步骤,首次引入社会人士,较以往的"一揽子"封闭模式是一种进步,但性质上仍属"法官自查"模式。惩戒制度整体仍有不足之处,包括惩戒法律依据不全且存有漏洞,惩戒机构独立性欠缺、组成人员开放性不足,未跟进匿名投诉,申诉救济机制的缺失,较之域外模式仍有完善空间。

There is an internal tension between disciplining judges and guaranteeing the independence of judges. The disciplinary agencies in the Anglo-American legal system can be divided into those with disciplinary powers and those without disciplinary powers. Practice shows that as long as the independent supervision of judicial disciplinary agencies has a proper organizational structure and strictly implements the disciplinary procedures, it will help ensure judicial independence and enhance judicial credibility. The judicial disciplinary system in Hong Kong is a two-stage model, including prepositive nonstatutory mechanisms and formal statutory mechanisms. Recently, it has experienced a significant reform, including transforming the prepositive mechanism into two-tier structures and further dividing it into five steps which are acceptance, preview, investigation, deliberation and decision. At the same time,the general public was first introduced to such a mechanism. To be honest, it is an improvement from the previous"package"closed model. However, it is still a non-independent internal supervision system which is regarded as the"judge-by-judge inspection type". Hence, there are still some shortcomings, including incomplete and flawed legal basis for punishment, lack of independent third-party supervision committee, short of openness on the procedure of preview and investigation, failure in handling anonymous complaints, unreasonable appeal system as well as lack of remedy system. In short, there is still some room for improvement in Hong Kong’s judicial disciplinary system.