法律实践在实现关于法官纪律责任理由的法律确定性方面的重要性

T. Malashenkova
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引用次数: 0

摘要

为了解决相关问题,乌克兰《关于司法机构和法官地位的法律》大大改变了使法官承担纪律责任的理由和适用这种责任的最严厉措施-解雇法官的理由。这种理由的详细程度相当高,无论是就这种理由的确定性而言,还是就违纪行为的类型与将对其适用的惩罚类型之间的相称性而言。同时,对相关法律规定的分析结果表明,它们并非没有可评价的模糊概念,如“严重无视法官职责”、“严重违法”、“重大过失”、“重大负面后果”。因此,产生的问题是,法官纪律责任的理由不确定的问题是否在概念上得到解决,或者尽管有关理由有重要的立法细节,但有关问题是否继续存在。解决这个问题是本文的目的。立法中存在不符合法律确定性要求的措辞,如“重大过失”、“重大违法”等,对法官的独立性有一定的风险,但这种风险的存在不能作为法律拒绝使用的理由。这是由于客观上不可能在法律中拟订一份绝对详尽的清单,列出一般的纪律责任的理由,特别是解雇一名法官的理由。关键的问题是形成纪律机构的一贯做法,这将首先形成理解模糊概念的标准,其次,不允许对同一法官的不当行为采取不同的办法。关键词:法官纪律责任;纪律责任依据;法律确定性;
本文章由计算机程序翻译,如有差异,请以英文原文为准。
The importance of law practice in achieving legal certainty regarding the grounds for disciplinary liability of a judge
In order to overcome the relevant problem, the Law of Ukraine «On the Judiciary and the Status of Judges» significantly changed both the grounds for bringing a judge to disciplinary responsibility and the grounds for applying the most severe measure of such responsibility – dismissal of a judge. The level of detailing of such grounds is quite high, both in terms of the certainty of such grounds, and in terms of proportionality between the type of disciplinary misconduct and the type of penalty to be applied for it. At the same time, the results of the analysis of the relevant legal provisions shows that they are not devoid of evaluative, vague concepts, such as «gross disregard for the duties of a judge», «gross violation of the law», «gross negligence», «significant negative consequences». Thus, the question arises whether the problem of uncertainty of the grounds for disciplinary liability of a judge has been conceptually resolved, or whether the relevant problem continues to exist despite significant legislative detail of the relevant grounds. Resolving this issue is the purpose of this article. The existence of wording in the legislation that does not meet the requirements of legal certainty, such as «gross negligence», «gross violation of the law» carries certain risks to the independence of judges, but the existence of such risks can not be considered a reason for the law refused to use them. This is due to the objective impossibility of formulating in the law an absolutely exhaustive list of grounds for disciplinary liability in general and grounds for dismissal of a judge in particular. Critical is the issue of forming a consistent practice of the disciplinary body, which would, firstly, form the criteria for understanding vague concepts, and secondly, would not allow different approaches to responding to the same misconduct of a judge. Keywords: disciplinary liability of a judge, grounds for disciplinary liability, legal certainty, evaluation concepts.
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