CAJ | 학술논문

我国法院的科层化建制并非源于宪法之规定,而是在政治实践中形成的,属于一种宪法惯例。此等法院建制引发了一系列连锁反应即多米诺效应。它使得法官缺乏身份保障而处于科层化生存状态,并导致法官流失和不务正业,由此对司法效率构成制度性障碍。比较研究发现我国每千人涉诉人数有限,法官与人口比例颇高,法官人均案件负担其实并不重。所谓＂案多人少＂主要是因一线判案法官过少引起的,其根源在于法院的科层化和行政化。此等体制不利于吸引优秀法官坚守判案一线,结果是知名法官难产,法官之治的经典法治模式因此而难以形成。
아국법원적과층화건제병비원우헌법지규정,이시재정치실천중형성적,속우일충헌법관례。차등법원건제인발료일계렬련쇄반응즉다미낙효응。타사득법관결핍신빈보장이처우과층화생존상태,병도치법관류실화불무정업,유차대사법효솔구성제도성장애。비교연구발현아국매천인섭소인수유한,법관여인구비례파고,법관인균안건부담기실병불중。소위＂안다인소＂주요시인일선판안법관과소인기적,기근원재우법원적과층화화행정화。차등체제불리우흡인우수법관견수판안일선,결과시지명법관난산,법관지치적경전법치모식인차이난이형성。
Chinese court institution of bureaucratization didn＇ t originate from China＇ s constitution, but had been forged in China＇ s political practice, which belongs to a constitutional convention. The court＇ s bureaucratization system has caused a series of chain reaction, which can be called a Domino Effect. It makes the judge be under the bureaucratic sur- vival condition. Comparative study shows that the number per thousand Chinese involving in lawsuit is limited, the ratio of the judge and the population is pretty high, judges＇ per capita case burden is not heavy in fact. The so - called ＂more ea- ses and less staff＂ contradiction is entirely caused by the fact that judges who work at the front line of adjudication are inad- equate, and its root lies in the court＇s bureaucratic system. At the same time, the system drives the elite group of judges to prefer the court management positions rather than going to the courtroom and hearing a case, therefore our country has been short of competent judges. However then only if there are some prominent judges in a country will the rule of law be realized in the near future.