“形合实独”的实践困局与制度转型——以基层法院的民事诉讼程序为对象

The practice dilemma and system transformation of "hypotaxis and alone"

基于对'合议为主,独任为辅'审判组织方式的运行实践考察以及对基层法院部分民事法官的访谈,我们发现基层法院普遍存在'名为合议制实为独任制'的审判现实。这种司法实践中的'形合实独'已成为合议制适用的实践困局,而合议制的功能虚化是其问题的根源。因此,为化解'形合实独'的实践困局,应推进现行的'合议为主,独任为辅'向'独任为主,合议为辅'进行转型,并使'独任为主,合议为辅'法定化,其理论基础是'独任为主'与程序简化审具有内在的契合性、'合议为辅'对高品质审判的组织保障、'独任为主,合议为辅'与繁简分流改革相辅相成,同时'独任为主,合议为辅'也是目前的全球性趋势。而在制度实施向度层面,需要从确立'独任为主,合议为辅'的审判原则、完善诉讼中独任制向合议制转换的程序规则、构建与程序繁简分流改革配套的衔接机制、健全以实施《人民陪审员法》为契机的合议制适用机制以及制定基层法院合议庭评议的实施细则等维度进行制度构建。

Based on the investigation of the operation practice of the trial organization mode of'collegiality as the main part and independence as the auxiliary part'in the civil proceedings of the national basic courts and the courts of district A and B of city B and district C of city C, as well as the interviews with some civil judges of the basic courts,the realization of 'independence'is more prominent in the basic courts,it has become a practical dilemma for the application of collegial system,the root of the problem is the function collapse.Therefore,in the basic level court in the civil procedure'the form complies with the reality to be independent'the practice difficult situation to dissolve,it is necessary to promote the transformation from 'the combination as the main and the independent as the auxiliary ' to 'the combination as the main and the independent as the auxiliary',and make'alone is given priority to,consensus is complementary'legalize,its theoretical basis is that'the sole responsibility is dominant'and the procedure simplification trial has the intrinsic correspondence,'the joint opinion is auxiliary ' to the high-quality trial organization safeguard,' 'the sole responsibility is dominant,the joint opinion is supplementary'and the complex and simple diversion reform supplement each other,simultaneously'the sole responsibility is dominant,the joint opinion is supplementary'is also the present global trend.And in system implementation dimension level,Need to establish'alone,and secondly collegiate bench trial principle,perfecting the system of lawsuit alone to the collegial system transformation rules of procedure,build and program and simplified shunt of cohesive devices and improve the supporting reform to implement the'law of people’s assessors'as an opportunity of collegial system applicable mechanism,and formulate the detailed rules for the implementation of grass-roots court deliberations dimensions such as system construction.