Research On Duty Of Diligence Under The Background Of Judges’ Trial Liability

According to the theory about unity of power and responsibility,power and responsibility must be complement to each other and have inherent unity.That is to say,only by realizing the unity of power,obligation,and responsibility,can the power and responsibility be adapted,can the power and responsibilities be compatible,that is,the subject of the obligation assume reasonable obligations and responsibilities,can exercise power exercise power within the correct scope and play the positive role of power.From the perspective of the nature of judicial trial,the judicial authority exercising by the judge,the obligations performing by the judge and the responsibility of the judge should accord with the unified theory of power and responsibility.In the meantime,power plays its role only after the subject fulfills its obligation,and responsibility is the evaluation of the obligation fulfilled by the subject,so the setting of obligation is the key to realize the unity of the three.Therefore,in order to realize the unification of power and responsibilities,the setting of judge’s obligation should conform to the standards of legitimacy and integrity.The standard of legitimacy requires that a judge’s obligation should be set within the judge’s competence,and the integrity standard requires that the setting of the judge’s obligation should be complete,that is,the content of the judge’s obligation not only emphasizes the avoidance of making mistakes,but also emphasizes the pursuit of excellence.Using these two standards to examine the three existing models of the judge responsibility system in China,namely,consequentialist mode,behavior mode and result mode,and professional ethics mode,it is found that they do not meet the requirements of these two standards,that is,they violate the requirements of the unity principle of power and responsibility and impose unreasonable obligations on judges.In this case,article5 of Judges Law of the People’s Republic of China amended in 2019 stipulates that Judges shall be diligent and responsible.This provision provides a direction for establishing the obligations of judges on the basis of the unified theory of power and responsibilities.Judges’ Duty of Diligence is in line with the standard of legitimacy and integrity.It requires attention to the behavior of the judge and puts forward the positive duty requirement to the judge,which can promote the correct view of the consequences of the judge’s performance of the duty.what’s more,it requires every judge to demand himself by legal professionals,and diligently perform his obligations as a judge in accordance with the standards of occupational judges.