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郭国汀 司法公正的前提条件

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发表于 2/24/2016 16:06:28 | 显示全部楼层 |阅读模式
本帖最后由 郭国汀 于 1/11/2017 17:04 编辑

郭国汀:司法公正的前提条件( 2003-2-1 原载中国律师网)


司法公正是法治的基本条件之一,没有司法公正之所绝对无法治生存的余地。因为法治的精神有四要件:一是法律面前人人平等,要实现之,必须有司法公正保障,而司法公正的前提之一乃司法独立,法官必须有独立审判权。既然司法不独立,法官没有独立审判权,中共国肯定不存在法治,因此,日前温家宝及外交部发言人脸不红心不地称:中国是个法治国家,将依法治处理刘晓波案等纯属自欺欺人的谎言。二是法律必须是普遍适用的,只有普遍适用的法律才可能实现法律面前人人平等,若法律可以厚此薄彼,法治也不复存在。三是法律必须是固定的,凡是法律可朝秦暮楚随时可变之所,即不存在法治。四是法律必须是众所周知的(至少是可知的)因此凡是依赖秘密文件或潜规则行事之所也没有法治,而中共暴政下,泡制了全球最多的“国家机秘”,其管理国家依赖的主要是红头文件而非成文法律,中共随心所欲带头破坏自已制定的法律,使得中共国根本不可能有所谓法治。最后,法治的生存有赖于法律的正义性公道性。立法不公是司法不公的源头,在中共一党专制独裁条件下,完全不可能制定良法,因此,必须彻底推翻中共专制暴政,才有可能实现真正意义上的法治。





 楼主| 发表于 1/11/2017 17:10:33 | 显示全部楼层
司法公正是法治的基本条件之一,没有司法公正之所绝对无法治生存的余地。因为法治的精神有四要件:一是法律面前人人平等,要实现之,必须有司法公正保障,而司法公正的前提之一乃司法独立,法官必须有独立审判权。既然司法不独立,法官没有独立审判权,中共国肯定不存在法治.

Independent judiciary was first to develop in British, where even since 13 century the King's power to make the decision on judiciary issues start to transfer to professional judges; however, the Independent judiciary formally established in British only after 1701, the parliament passed a statute which empowers the judge's independent power to handle cases. From then on, western countries have been established the independent judiciary one after another.
 楼主| 发表于 1/16/2017 22:12:15 | 显示全部楼层
Judicial independence is the concept that the judiciary needs to be kept away from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests.

An Independent and Impartial Judiciary

Judicial Independence

The judiciary is independent from other branches of government. In the words of a former Canadian prime minister, Arthur Meighen, judges are in "a place apart" from the other institutions of our society. Governments appoint and pay judges, but once appointed judges are shielded from bureaucratic control. Judges must be able to make courageous, even unpopular decisions knowing that no one - a chief justice, another judge, a government official or even the most powerful politician - can fire them or cut their salaries as retaliation. Justice is not a popularity contest, and judicial independence also protects judges who make controversial decisions that spark public outrage. The concept of judicial independence is enshrined in the Charter, which guarantees everyone accused of crimes that their case will be heard by "an independent and impartial tribunal." Independence is vital to fostering public confidence in the fairness and objectivity of the justice system. The Supreme Court of Canada has described judicial independence as "the cornerstone, a necessary prerequisite for judicial impartiality."

A number of measures are taken to protect this independence. Judges oversee the administration of the courts and the government does not set hearing dates or assign a judge to a particular case. An independent body, the Judicial Compensation and Benefits Commission, reviews judges' salaries, benefits and retirement annuities and recommends improvements and changes. Judges also enjoy security of tenure - superior court judges can remain on the bench until age 75 and can be removed from office only after an independent investigation determines they are unfit or guilty of misconduct and both houses of Parliament vote to remove the judge from the bench. Finally, judges enjoy legal immunity and do not have to worry about being sued for something they say or do while carrying out their duties.

Impartiality

It is not enough for the judiciary, as an institution, to be independent - individual judges must be seen to be objective and impartial. In their personal lives, judges must avoid words, actions or situations that might make them appear to be biased or disrespectful of the laws they are sworn to uphold. They must treat lawyers, clients and witnesses with respect and must refrain from comments that suggest they have made up their minds in advance. Outside the courtroom, judges do not socialize or associate with lawyers or other persons connected with the cases they hear, or they may be accused of favouritism. Judges typically declare a conflict and withdraw from a case that involves relatives or friends. The same is true if the case involves a former client, a member of the judge's former law firm, law partners or a former business associate, at least until a year or two has passed since the judge was appointed and those ties were severed.

Judges often choose to avoid most forms of community involvement. A judge may undertake community or charitable work but cannot offer legal or investment advice. Judges cannot take part in politics, either as a party member, fundraiser or donor, and many choose to relinquish their right to vote. While judges have been more willing in recent years to make public speeches or agree to media interviews, they refrain from expressing opinions on legal issues that could come before them in a future case. Judges are forbidden from being paid to do anything other than their judicial duties, but can accept appointments to serve on royal commissions, inquiries and other official investigations.

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