法庭警察權研究

法庭警察權乃法院為維護法庭秩序及審判的威嚴所享有的採取秩序措施及施加秩序罰的權力。法庭警察權有妨害預防作用、妨害排除作用與妨害制裁作用三種基本形態。基於法庭秩序維護的實效性與法庭警察權實施基礎的客觀實在性，法庭警察權依附于裁判權，由擔當裁判權的法院行使。法庭警察權以功能意義上的法庭為其實施的時空範圍，以妨害法庭秩序及審判威嚴的行為及狀態為規制對象。對於妨害法庭秩序的行為實施何種作用形態的法庭警察權取決於法院的合目的性裁量，應受比例原則的規制。法庭警察權在我國由三大訴訟法分別規範，不僅未能科學地體認法庭警察權的性質，也未能正確地廓清法庭警察權應有的實施邊界，加劇了司法實務中法庭警察權制度適用之亂象，極待統一立法構建。

"The judiciary’s police power is the right of the court to take orderly measures and punishments to maintain court order and the dignity of the trial. Such a power takes three basic forms of prevention, elimination and sanction. Based on the effectiveness of court order maintenance and the objective reality of the implementation basis of the court’s police power, the judiciary’s police power depends on the jurisdiction and is exercised by the court in charge of the jurisdiction. The judiciary’s police power takes the court in the functional sense as its scope of time and space, and regulates the behaviors and states that interfere with court order and the dignity of the trial. What kind of the police power should be adopted for acts that disrupt court order depends on the court’s purposeful discretion and should be regulated by the principle of proportionality. The judiciary’s police power in China is regulated by three major procedural laws, which not only fails to recognize the nature of such a police power scientifically, but also fails to correctly clarify the boundaries of the power due to its role, thus intensifying confusion in exercising this power, which needs to be corrected urgently."