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A Comparative Study Of The Professional Ethics Of Judiciary

Posted on:2018-09-26Degree:DoctorType:Dissertation
Country:ChinaCandidate:D G LiaoFull Text:PDF
GTID:1316330515969561Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The comparative study of the professi onal ethics of judge s is a theoretical research on the purpose of nor malizing the exercise o f judicial power and the preventing and controlling of judicial corruption in the context of China's anti-corruption campaign.As the final defense line to safeguard social justice,fairness and justice is the soul of the whole judici al work.However,law does n ot enforce its own.The judicial professional ethics plays a key role in the judicial practice of th e judiciary and the realization of judicial justice.How to carry out the study of the professional ethics of the judges is what the author strives af ter.There are two approaches to the study of law,and one is "normative jurisprudence" and the other i s "social jurisprudence".Based on the study of the judicial professional ethics from the way of "normative jurisprudence",the author th inks that it is very dif ficult to explain the choice of the judges' professional ethics as the m ain body,while the approach of "social jurisprudence" from the perspective of the theory of the role of social eth ics,the interdisciplinary research,is not only new and i nnovative,but also has a greater vision because of the study on law a nd morality.The professional ethics of the judges is the ethics of the social role of the judges.Its social stipulations are based on the function of the judges in the political system and judicial system,that is,in the practice of their judicial power,they must be in line with the social ethics of the judiciary and the general ethical requirem ents of the code of conduct.On the specific ideas of the thesis,the author starts from the th eoretical perspective of the ro le ethics of social ethics,and takes the crim inal justice as an example and uses th e theory of jud icial system to construct the analytic framework.And then,based on the idea that the types of judicial system shape and influ ence the position of the profe ssional role of the judiciary which determines the m odes of th e professional ethics of the judges,the author is trying to carry out the com parative study of the contem porary judicial professional ethics of the Continental law system and Anglo-American law system and China's occupation ethics,and puts forward the basic path,strategies and prospects for the reform and development of the professional ethics of China's judges.First of all,the author expounds the basic theory of the judicial professional ethics.It is mainly divided into three parts.The first part is to study the occupational ethics from the perspective of social ethics.From this point of view,in an objective and social way rather than subjective,personal positions to carry out the research,the focus is on the so cial structure and system which determines the professional ethics,the structure of professional ethics and the research path.The s econd part is the interpretation of the concept of judicial professional ethics.From professional ethics to judges' professional ethics is a concrete process,the m ost critical of which is the understanding of the judicial nature of the judicial profession and its function positioning.The third part is the theory of judicial system.The logical th inking of judicial system of "ideal t ype",the judges' role and th e mode of judges occupation ethics constitute the fram ework of the com parative analysis between the Continental law system and Anglo-American law system and China's occupation ethics.Secondly,the author analyzes the profe ssional ethics of the Continental law system and Anglo-American law system.According to the analytic fram ework above,it is divided into three parts,the first one of which is the types of judicial system of the two law systems.First of all,it is necessa ry to know the rule of law in the judicial system of the two legal system s.Then,the judicial systems of the two legal sy stems,namely "the program implementation of hierarchical power organization policy" of the Continental law system and "the program implementation of collaborative power organization policy" of Anglo-American law system are expounded in this thesis.The second part is the role of the judiciary in the two legal systems.The types of judicial system in the two legal system determine the professional function positioning of the judiciary.The professional role of the Continental law judges is "hierarchical bureaucracy",while that of the Anglo-American law s ystem is p ositioned as "collaborator".The third part is the modes of the profession al ethics of the judges i n the two legal systems,which represent the development of the professional ethics of the judiciary.The models of the judicial ethics in the Continental law system are based on "judicial responsibility" as the p osition and guide of pro fessional ethics,and as a guide and control the role of the professi onal role of the judicia ry.While in th e Anglo-American law system,the mode ls of professional ethics of "independent-judges" have more emphasis on the "judicial independence" as the position and guide of professional ethics,and as a way to guide and protect the judges.In both system s,the professional ethics of judges,fundamentally speaking,has the "responsibility and independence" as the core,but there are dif ferences between the focuses.Thirdly,it examines the contemporary judges' professional ethics in China.The author divides it into tw o periods.In the first period is from the time when the th ird Plenary Session of the 11 th CPC Central Committee was held to the tim e when the 18 th CPC National Congress was held.During this period,the prof essional ethics of contemporary judges are basically for med.The second period st arts after the 18 th CPC National Congress to before the 19 th one.During this period,the reform of judicial system had been brought forward,which had b rought about positive changes in the professional ethics of the contemporary judges.On the whole,both in the current situation and in the process of development,although the reform of the judicial system has brought about positive changes in the professional ethics of the contem porary judges in China,the main administrative logic,rather than judicial logic in the judicial system,still runs th rough the typ e of "extreme bureaucratic power or ganization in China's policy implementation program",the function positioning of the role of the judges as a "defender" and the judicial professional ethics m odels of "judicial dedication and obedience".Finally,based on the above,the author makes a comprehensive comparison of the Continental law system and Anglo-American law system and China' s contemporary judicial professional ethics,exam ines the urgent issues of China' s contemporary judicial professional ethics,explores and improves its development path and strategies,and is looking forward to its developm ent.Specifically speaking,w e must pay attention to two aspects.One is that the professional ethics of the judiciary has a universal standard,that is to say,the judicial profession "responsibility and independence" as the core,and the pursu it of the basic unity of the two goals.According to this standard,we can evaluate the professional ethics of the Continental law system and Anglo-Am erican law syst em and Chi na's contemporary judicial professional ethics.The other is that thr ough the comparison of the two l egal systems and China's contemporary judicial professional ethics,two problems are solved.Firstly,it is clear that the prof essional ethics of the Continental law system and Anglo-American law system have the universality and particularity of the development path and system construction.Secondly,there is a clearer understanding of the particularity and developm ent path of th e professional ethics of the contem porary Chinese judges,which can prom ote the re form and developm ent of contem porary judicial ethics.With the above two points clear,we can continue to promote the reform and development of China's contemporary judicial professional ethics.
Keywords/Search Tags:Professional Ethics, Types of Judicial System, Professional Role of Judges, Professional Ethics of Judges
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