司法改革背景下主审法官责任制:问题、反思与出路——以刑事案件为例

从近年发生的刑事主审法官担责的3起刑事事件说起,提出主审法官为什么要承担责任、承担哪些责任、是否存在救济程序等问题。为了能让刑事主审法官担责,反思中发现责任与错案概念上的概念界定难和主审法官并不是真正的责任主体以及认定错案标准不统一。为了让刑事主审法官真正担责,提出了需要建立主审法官责任法定原则、主审法官责任豁免原则、保护被追究主审法官权益保障原则3个主要原则。具体构建上,确立主审法官责任追究的前提条件是法官必须独立；进行主审法官责任追究的归责事由是主审法官不当行为为主、错案追究为辅；建立健全主审法官责任追究主体与追究程序。

The Question, Reflection and Solution of System of Job Responsibility of Presiding Judges under the Background of Judicial Reform

Speaking of the three criminal cases whose responsibility shall be undertaken by presiding judges of criminal cases occurred recently, it has been proposed why the presiding judges have to undertake responsibilities, what responsibilities shall be undertaken by the presiding judges and whether there is the remedy procedures or not and so on. In order to make the presiding judges of criminal cases undertake the responsibilities, it has been found out by reflection that it is difficult to demarcate responsibility and misjudged case in definition; and there is inconsistency between that the presiding judges are not the real subject of responsibility and the standards to determine the misjudged case. In order to make the presiding judges of the criminal cases really undertake the responsibilities, it has been put forward that three principles, i.e. presiding judges'' responsibility legitimate principle, presiding judges'' responsibility exemption principle and the principle to protect the investigated presiding judges'' rights and interests shall be established. In specific construction, the premise to determine the presiding judges'' responsibility investigation is that the judges must be independent. The liability attribution grounds to investigate the presiding judges'' responsibility shall take the improper behavior of the presiding judges as the main body and the investigation of misjudged cases as the auxiliary body. Besides, the presiding judges'' responsibility investigation main body and investigation procedure shall be established and perfected.