法庭警察权研究

On the Police Power of the Judiciary

法庭警察权乃法院为维护法庭秩序及审判的威严所享有的采取秩序措施及施加秩序罚的权力。法庭警察权有妨害预防作用、妨害排除作用与妨害制裁作用三种基本形态。基于法庭秩序维护的实效性与法庭警察权实施基础的客观实在性,法庭警察权依附于裁判权,由担当裁判权的法院行使。法庭警察权以功能意义上的法庭为其实施的时空范围,以妨害法庭秩序及审判威严的行为及状态为规制对象。对于妨害法庭秩序的行为实施何种作用形态的法庭警察权取决于法院的合目的性裁量,应受比例原则的规制。法庭警察权在我国由三大诉讼法分别规范,不仅未能科学地体认法庭警察权的性质,也未能正确地廓清法庭警察权应有的实施边界,加剧了司法实务中法庭警察权制度适用之乱象,亟待统一立法构建。

The judiciary’s police power is the right of the court to take orderly measures and punishments to maintain court order and the dignity of the trial.Such a power takes three basic forms of prevention,elimination and sanction.Based on the effectiveness of court order maintenance and the objective reality of the implementation basis of the court’s police power,the judiciary’s police power depends on the jurisdiction and is exercised by the court in charge of the jurisdiction.The judiciary’s police power takes the court in the functional sense as its scope of time and space,and regulates the behaviors and states that interfere with court order and the dignity of the trial.What kind of the police power should be adopted for acts that disrupt court order depends on the court’s purposeful discretion and should be regulated by the principle of proportionality.The judiciary’s police power in China is regulated by three major procedural laws,which not only fails to recognize the nature of such a police power scientifically,but also fails to correctly clarify the boundaries of the power due to its role,thus intensifying confusion in exercising this power,which needs to be corrected urgently.