論院庭長的審判監督管理權

審判監督管理權實則為審判監督權與審判管理權兩大同義詞的組合，其性質上是一種司法行政監督權，行政權是其本質。在行權方式上，由於審判監督管理權所針對之內容為審判人員的審判活動，而審判活動受獨立審判原則之保護，因而院庭長行使審判監督管理權亦應當有所節制，其行權方式亦非“指令”，而是“監督”。從法理層面來看，院庭長行使審判監督管理權，只要嚴格按照法定程序、採用法定的行權方式、在法定的行權範圍內行使，即不被視為行政權對審判權的違法干預。關於審判監督管理權行使的合理限度，首先，應明確其行權之方式，厘清其行權之流程，注意區分“監督”與“指揮”“指導”之差異;其次，應明確其行權之範圍，對於其行權範圍之確定可采“核心領域理論”之內核，以“顯著錯誤標準”為基點，並結合我國國情予以適度放寬。具體而言，院庭長是否應當啟動審判監督管理權應綜合考慮下述三點因素:一是錯誤之明顯性;二是監督之必要性;三是違法之嚴重性。

The trial supervision and management power is in fact a combination of two synonyms, namely, the trial supervision power and the trial management power. It is a kind of judicial and administrative supervision power, with administrative power as its essence. In terms of the exercise of power, since trial supervision and management power is targeted at trial activities of judges, which are protected by the principle of judicial independence, the exercise of such power by the court presidents and chief judges should also be restrained, and the power should be exercised in the form of “supervision” rather than “command”. From a jurisprudential point of view, as long as court presidents and chief judges follow legal procedures, use prescribed methods and abide by legal scopes when exercising trial supervision and management power, it is not considered an illegal interference of trial by administrative power. To understand the reasonable limits of trial supervision and management power, we should first clarify the manner and process of exercising such power with a clear distinction between “supervising” and “directing” or “guiding”. Secondly, the scope of exercising such power should be defined. The kernel of the “core area theory” can be adopted to determine the scope, with the “obvious error standard” as the basis, and appropriately relaxed in consideration of China's national conditions. Specifically, whether court presidents and chief judges should initiate trial supervision and management should be comprehensively considered based on the following three factors: the obviousness of the error, the necessity of supervision, and the severity of the violation.