On the basis of construction of judge immunity system in China

【Abstract】The judge immunity system originated from the western countries， and it has important significance in the maintenance of justice and authority and so on. The judge immunity system is the core content and the main guarantee to realize the judicial independence. Because the current system of misjudged case has a lot of disadvantages， so it is more necessary to establish the system of judge immunity.

【Key words】Immunity of judge； misjudged case investigation system； judicial justice

Body

The system of judge immunity appeared in some western countries， which is the product of bourgeois revolution. While it is the premise and condition of judicial authority and judicial order， the important content and guarantee of judge independence.

There are three characteristics of the judges judicial immunity： first of all， it is a professional privilege that conferred by the law of our country. Secondly， it is a procedural right. Only the rights within the scope of the proceedings and the relevant procedures are not protected by the immunity of judges. Lastly， it is a right not to give up. In order to safeguard judicial justice and social justice， the judge immunity system gives and safeguards the right of judge.

The judge immunity system is the core content and important guarantee of judicial independence.

The rule of law is the goal pursued by all countries， and the realization of this goal requires the realization of judicial independence. Exactly independence of judges is a major part of judicial independence. Judge independence means judges to excise their powers according to law will not involve their own rights and interests. Supposing in the course of the trial， the judge considers that he might be to blame for appearance of new evidence， he would take evasive measures to protect himself during the trial， even dare judge and delay the litigation. So the judge immunity system is helpful to eliminate the concerns of judges， and the independence of judges can be veritably achieved.

The judge immunity system is determined by the judges professional characteristics.

Judges face complex cases and complex parties every day， but they try a case under limited capacity of judges and limited judicial resources conditions. Therefore， it is obviously impossible to ask the judge to make every decision correct.

In addition， the judge is engaged in a kind of referee activity， which is characterized by increasing the interests of the other party via reducing the interests of one party to achieve legal justice. So the decision is bound to damage the interests of the party， and this party will be dissatisfied， which is a kind of external pressure for judges. Therefore， the law should be given adequate protection to avoid the interference of the pressure.

The implementation of the system of investigation of the responsibility for judicial errors is a important reason.

We currently push the system of investigation of the responsibility for judicial errors， which means judges should be held responsible for their wrong judgment. However， in some basic courts， the core of this system is the investigation of verdict. The judges breach of procedure has been ignored. So the judge in the trial， whether intentional or negligent， whether or not the violation of the procedure， as long as the ruling error， should bear the responsibility. Consequently， this system makes the judges lose the power of independent judgment， and greatly weaken the enthusiasm of judges to perform their duties， even adversely affect the authority of the judiciary.

The excessive development of misjudged case investigation system has gradually deviated from the original purpose， and has damaged the justice， which makes it necessary to establish the system of judge immunity. Through this system， the judge ruled out the influence of the law.So that the judges independence becomes a reality.

Conclusion

Judge is a carrier of legal authority. He is responsible for the realization of judicial independence. In the course of the trial， he should be objective and fair， and unify substantive justice and procedural justice. To achieve the goal， the law should give judges judicial immunity.

作者簡介：马文瀚（1991-），男，汉族，山东潍坊人，青岛大学法学院研究生在读，宪法学与行政法学专业，行政法方向。