Abstract:
Pretrial proceedings began as purely instrumental proceedings in
the service of trials. With the development of judicial practice and theory,
especially under the high litigation pressure, increasing numbers of countries
begin to grant independence to pretrial procedures, endorse its credentials as
an alternative to resolving disputes without a trial, and increasingly recognize
the role of pretrial procedures in improving trial efficiency. Now, consensus
has been reached on the three functions of pretrial process, including sorting
out disputes, fixing procedures and promoting reconciliation. Among all the
categories of pretrial procedure, the presiding subject of pretrial procedure is
very controversial. The opposition between integration system and separation
system has been existing, and the debate and discussion about whether the
auxiliary personnel such as the judge assistant can preside over the trial never
stop. Traditionally, there has been more support for separation, with the view
that the presiding judge should not have pre-trial access to the case. However,
with the development of practice and concept, the integration system seems to
be more rational, and the trial judges are gradually accepted to preside pretrial
procedures by scholars.
审前程序初始是为庭审服务的纯粹工具性程序,随着司法实践及理论的变迁,尤其是在各国诉讼压力大的背景之下,各国均开始赋予审前程序以独立性,认可其作为未经庭审解决纠纷的替代性途径的资格,并逐渐认可审前程序在提升审判效率上的作用,在审前程序整理争点、固定程序及促进和解的三大功能方面达成共识。在审前程序的诸多范畴中,审前程序的主持主体非常具有争议性,形成了合一制与分离制的对立,以及对法官助理等辅助人员能否主持审前的争论与探讨。传统上一般比较支持分离制,认为主审法官不应在审前接触案情,而随着实践与理念的发展,合一制开始显得更加理性化,主审法官主持审前程序逐渐为深入探讨审前主持主体问题的学者所接受。