美国司法政治变迁的内在逻辑——从“罗伊案”说开去

美国的司法政治是司法与政治交互作用的产物。随着司法权的扩张,联邦最高法院突破"政治问题不审查"之传统,主动或被动地介入政治争议;随着政党对峙的尖锐,政治力量乐于将棘手的政治争议交由司法裁断;藉此,司法政治演变为常态政治,司法判例成为经久不衰的政治争点。自上个世纪70年代以来,围绕罗伊案半个多世纪的争议,不仅客观地暴露了美国司法政治发展的内在逻辑,而且也充分地展示出司法政治在美国的作用方式和涵摄空间。     

论法院处理环境纠纷案件中的司法能动

司法能动是法院在案件审理中,不因循先例和遵从成文法的字面含义进行司法解释的一种司法理念以及基于此理念的行动。我国法院在发挥司法能动性,处理环境纠纷案件方面作出了大量努力,为经济社会发展提供了司法保障。但法院在发挥司法能动性处理环境纠纷案件中仍然存在较大的问题。解决这些问题,必须把握法院在环境纠纷案件处理中司法能动的向度,落实司法独立,引导法官正确行使自由裁量权,努力培养环境司法专业人才,发挥法官适用法律的能动性。     

Enhancing judicial skills in domestic violence cases: the development,implementation, and preliminary evaluation of a model US programme

ABSTRACT

The overwhelming number and complexity of domestic violence cases in criminal and family courts has resulted in the development of education programmes to assist judges. There is limited research on judicial education in this area. This paper reviews one such initiative entitled ‘Enhancing Judicial Skills in Domestic Violence Cases’ (EJS) that has been developed and implemented over the last 20 years by the National Judicial Institute on Domestic Violence, a partnership of the US Department of Justice Office on Violence Against Women, National Council of Juvenile and Family Court Judges and Futures Without Violence. We present findings of a preliminary evaluation of the programme based on the self-reports of 480 judges who had taken the four-day workshop between 2006 and 2010. Overall, judges reported the programme to be engaging and effective. At a six-month follow‐up, most of the judges identified specific benefits and behavior changes in the areas of access to justice, judicial leadership, victim safety, and abuser accountability as a result of participating in the programme. Critical issues in judicial education are highlighted based on the authors’ experiences in the development and implementation of this programme.     

司法解释权:理论逻辑与制度建构

法官在司法过程中,应当按照一定的原则创造性地解释和适用法律,这是现代法学理论在法律解释问题上的主导观念。目前,越来越多的国家在立法上赋予法院或法官解释法律的权力。司法解释构成了司法过程中的一项基本作业。作为特定制度结构下的集体智慧化的产物,司法解释权由最高司法机关统一行使具有正当性和现实合理性。建国后沿袭下来的我国司法解释权制度存在着一系列明显的缺憾。处于传统向现代转型的当代中国,正日益面临着发展和创新司法解释权制度的历史重任。重构我国司法解释权制度的总体思路是:在正确界定不同审级法院职能分工的基础上,促进最高人民法院功能由司法审判向法律统一适用转变;按照法治社会的基本要求,树立司法解释在法律适用上的应有权威;从法律解释的内在规律出发,建立科学合理的司法解释规则体系。     

An Experimental Investigation of How Judicial Elections Affect Public Faith in the Judicial System

Judicial scholars have often speculated about the impact of elections on the administration of justice in the state courts. Yet relatively little research has concerned itself with public perceptions of state court selection methods. Of particular interest is the concept of legitimacy. Do elections negatively affect public perceptions of judicial legitimacy? Bonneau and Hall (2009) and Gibson (2012) answer this question with an emphatic “No.” Judicial elections, these studies show, are not uniquely troublesome for perceptions of institutional legitimacy. This article aims to extend the findings of Bonneau and Hall and Gibson via a laboratory experiment on the effects of elections on public perceptions of judicial legitimacy. In the end, we find that because elections preempt the use of the other main selection method—appointment—they actually enhance perceptions of judicial legitimacy rather than diminish them.     

从制度上保证审判独立——以司法独立的国际标准为参照

司法独立的国际标准要求法院和法官在行使审判权的时候不受干预,有关各方也不得进行干预,并且还应当为法院和法官独立审判提供积极保障。我国的审判独立原则包含了法院集体独立和法官个体独立的内涵,但无论是在立法上还是在实践中,都与国际标准存在着一定差距。只有以国际标准为指导,对我国不符合审判独立要求的制度和做法进行改革,才能够达到从制度上保证审判独立的目的。     

An Important form of Improvement of the Professional Skills of Justice Personnel

In accordance with the joint decree of the CPSU Central Committee and the USSR Council of Ministers of July 30, 1970, "On Measures to Improve the Work of Judicial and Procuracy Organs," and Decree No. 640 of November 12, 1970, of the RSFSR Council of Ministers, permanent republic-wide courses for improving the qualifications of justice personnel in the RSFSR have been organized in that federation. Here members of supreme courts of autonomous republics, members of territorial, regional, city, and national area courts, presiding judges of district (or city) people's courts, people's judges, consultants of departments of justice and of courts, notaries, and defense attorneys will undergo retraining. Branches of the republic-wide courses for bailiffs, office heads, secretaries of courts and hearings, clerks, and inspectors are being established in affiliation with the ministries of justice of autonomous republics and the justice departments of the executive committees of territorial and regional Soviets of working people's deputies.     

Starting Out on a Judicial Career: Gender Diversity and the Appointment of Recorders,Circuit Judges,and Deputy High Court Judges, 1996–2016

This article is a quantitative study of those who are appointed Recorders and Circuit Judges, and who are authorized or appointed as Deputy High Court Judges. It considers the period 1996–2016, being the twenty years that straddle either side of the creation of the Judicial Appointments Commission (JAC). A key focus is the gender diversity of these appointments and how this has changed over time, including whether the transfer of appointments to the JAC has made a difference to gender diversity or whether increases in the proportions of female judges are attributable solely to a changing demographic among the pool of lawyers from which such judges tend to be appointed. Who are appointed to these positions is significant both because of the importance of the positions themselves, but also because they comprise the pool from which, as a practical reality, the Senior Judiciary is appointed.     

The Legal Profession as Gatekeeper to the Judiciary: Design Faults in Measures to Enhance Diversity

The gate‐keeping role played by the legal profession in the judicial appointments process gives rise to the translation of entrenched group‐based identity hierarchies from legal practice into the judiciary. The relationship between the composition of the legal profession and the judiciary has been almost completely unaffected by recent reforms designed to increase diversity in the composition of the judiciary. This article identifies legal and institutional defects which help to explain the failure to disrupt the reproduction of these patterns of appointment. We identify two particular defects which we call ‘soft target radicalism’ and ‘regulatory bind’ as important factors inhibiting change. We conclude that if the legal profession is to retain its gate‐keeping role, equality law which directly regulates legal practice should be strengthened and the regulatory binds in which the Judicial Appointments Commission and other public entities are caught should be loosened.     

Judges as Readers,Authors and Dialecticians: Legal Interpretation in the EC<Emphasis Type="Italic">t</Emphasis>HR Cases on Mental Disability

The wording of major human rights texts—constitutions and international treaties—is very similar in those provisions, which guarantee everyone the right to family, privacy, protection against discrimination and arbitrary detention, and the right to access the court. However, judges of lower national courts, constitutional judges and judges of the European Court of Human Rights often read the same or seemingly the same texts differently. This difference in interpretation gives rise not only to disputes about the hierarchy of interpretative authorities, but to more general disputes about limits of judicial construction and validity of legal arguments. How it may happen, that the national courts, which apply constitutional provisions or provisions of national legislative acts, which are seemingly in compliance with the international human rights standards, come to different results with the international judges? Do they employ different interpretative techniques, share different values or develop different legal concepts? Do international judges ‘write’ rather than ‘read’ the text of the Convention? Who is, in Plato’s terms, a name-giver and who has a power to define the ‘correctness’ of names? The answers to these questions from the rhetorical and semiotic perspectives are exemplified by the texts of the judicial decisions on the rights of persons with mental disabilities.     

法官视角中的能动司法

能动司法是司法创造力的体现。在美国,这种司法能动的突出表现形式是司法审查权,通过多年的案例发展,美国已经形成了较为完备的司法审查体制。在英国,至今法院尚无对立法的审查权。但在英美法系国家,由于有判例法传统,法官的司法能动性相对较大,在案件审理中,区分相似案件事实和不断发展法律规则是法官司法技术的重要组成部分。英美法系的司法能动对我国司法实践具有积极的借鉴意义。在我国,司法能动在审判领域的主要表现形式是最高法院司法解释、个案法官法律论证,其主线是政策考量与法律考量,也可称之为社会效果考量与法律效果考量。     

司法的限度：在司法能动与司法克制之间

我国法院从司法改革初期积极扩张司法权的一端,转变到面对社会矛盾复杂性而采取自我限缩策略的另一端,暴露出司法权运作边界模糊的问题。社会需求决定了司法的供给,但司法权的能力是有限的,其机能的发挥有赖于一定的条件,而且当事人人数的多少、案件的复杂程度等都会影响司法权的能力。司法权应当恪守自己的边界。对超越自身能力的事情保持克制,是司法权威的必要保证。     

Domestic judicial defiance and the authority of international legal regimes

Tensions and occasional overt defiance of international courts suggest that compliance with international regimes is not a self-evident choice for domestic judges. I develop a formal theory of domestic judicial defiance in which domestic and supranational judges vie for jurisprudential authority in a non-hierarchical setting. The model emphasises the role of domestic non-compliance costs and power asymmetries in determining the conduct of domestic and international judges. I argue that the EU represents a special case of a particularly effective international regime. Weak domestic courts have little to gain from an escalated conflict with the European court of Justice. But even domestic judicial superpowers like the German Federal Constitutional Court have strong incentives to seek mutual accommodation with European judges. The analysis also yields new insights into concepts, such as “judicial dialogue” and “constitutional pluralism” that have featured prominently in the legal literature, and suggests new hypotheses for empirical research.     

The Influence of the EU and the ECHR on ‘Parliamentary Sovereignty Regimes’: Assessing the Impact of European Integration on the British and Swedish Judiciaries

The paper analyses the consequences of European integration processes upon the judicial systems of the so‐called ‘parliamentary sovereignty regimes’, focusing on the British and Swedish judiciaries. The aim is to understand if the influences coming from European integration, favouring the expansion of domestic judicial power, have prevailed, or the traditional distrust of such countries in judicial power has prevented the empowerment of the domestic courts. The influences on the judicial systems are evaluated distinguishing judicial capacity, judicial attitudes and judicial independence. The paper argues that the political relevance of judges has strongly increased. However, while European integration has deeply transformed the formal means at disposal of judges, because of political and judicial culture the changes in actual judges' behaviour have been much more limited. Moreover, the paper highlights some unexpected ways in which European integration can affect the domestic political systems (eg favouring certain legislative reforms or legal principles).     

司法解释权能的复位与宪法的实施

作者认为,应然的司法解释,不是一项独立的权力,而是司法权中不可或缺的一项权能。基于误解而形成的最高法院"司法解释权"缺乏宪法依据,它既侵蚀了下级法院的司法权,又对立法机关的立法权构成侵犯,而且还阻碍了宪政的发展。只有让包含了宪法解释的司法解释权能复位,回归到各级法院的司法权中,才能推动宪法的实施。     

Judicial empowerment expanded: Political determinants of national courts' cooperation with the CJEU

Scholars in EU studies have developed diverse justifications for explaining why national judges cooperate with the Court of Justice of the European Union. In this regard, judicial empowerment theories have stressed the strategic importance of cooperation for empowering national courts vis‐à‐vis high courts and political actors. Nevertheless, these explanations have been restricted to the use of preliminary references by lower courts. This contribution expands the explanatory power of these approaches by exploring other potential scenarios and instruments that national judges can use to challenge the position of their governments and judicial superiors, for example, by emphasising the importance of CJEU precedent for their strategic behaviour. By offering new data collected from case‐law and surveys, this article offers a more systematic assessment of the relevance of cooperation for national judges to reinforce their authority against other institutions. The findings call for a revision of the traditional understanding of judicial empowerment theories.     

组织视角下的民事诉讼发回重审制度

民诉法学界和实务界有关二审程序中的发回重审存在较大争议,该制度成为本次民诉法修改的重要议题之一。为了形成共识,对这一问题从法解释论的角度进行阐释解说尤为必要。为了限制发回重审裁量权的滥用,我国司法实践中采用程序细化与加强对审判的组织管理并行的策略。不过这种"程序"与"组织"的交织并不能真正抑制裁量权滥用,反而因剥夺当事人的程序参与权而损害审判的公信力。为调整二者的相互关系,应在审判管理的组织背景下保障审判程序的自主性,恢复当事人在程序运作中的结构性位置。     

Enforcer, manager or leader? The judicial role in family violence courts

Judicial supervision of offenders is an important component of many family violence courts. Skepticism concerning the ability of offenders to reform and a desire to protect victims has led to some judges to use supervision as a form of deterrence. Supervision is also used to hold offenders accountable for following court orders. Some family violence courts apply processes used in drug courts, such as rewards and sanctions, to promote offender rehabilitation. This article suggests that while protection and support of victims should be the prime concern of family violence courts, a form of judging that engages offenders in the development and implementation of solutions for their problems and supports their implementation is more likely to promote their positive behavioral change than other approaches to judicial supervision. The approach to judging proposed in this article draws from therapeutic jurisprudence, feminist theory, transformational leadership and solution-focused brief therapy principles.     

Analysis of relationship between efficiency of justice services and salaries of judges with two-stage DEA method

In this study it??s aimed to determine the relationship between efficiency of justice service and salaries of judges in European countries with two-stage Data Envelopment Analysis (DEA). Data used in this study are taken from European Judicial System report published by The European Commission for the Efficiency of Justice. In this study two stage DEA is used. In the first stage, the efficiency of justice service is measured by data envelopment analysis. In the second stage, the results obtained from DEA are regressed with variables affecting the courts by Tobit regression model. In the DEA analysis while number of judges and office staff are used as inputs, resolved cases are used as outputs. In the Tobit regression model while the results obtained from DEA are used as dependent variable, judge salaries, judges?? basic education and number of courts are used as explanatory variables. According to Tobit regression model, it??s found that there is a positive and significant relation between efficiency of justice service and salaries of judges in European countries. The increase in judge salaries is significant for the efficiency of courts, but it certainly is not only solution for the efficiency of justice services.     

社会转型时期执政党对司法的独特作用——以当前我国的能动司法实践为分析依据

无论是中国的司法体制改革还是司法能动的运用都不能忽视执政党的独特作用,＂司法独立＂并不是绝对的,尤其是在社会的转型时期。司法能动中执政党的独特作用主要表现为：执政党最可能把握国家当下的社会现实与社会演变的基本趋势,执政党最可能指明能动司法的基本要求与最佳境界,执政党的政策本身对法律具有一定的补充价值,党对司法能动的指导具有必要性、可行性与低成本性,实现综合效益的最大化等方面。执政党对司法的独特作用给予我们诸多启示,其中之一就是中国法院的政治功能,是一个值得关注的时代课题。