Location of modern judicial function

Abstract: Speaking of Justice, familiar phrase we often think of the words: Justice is to safeguard social fairness and Justice of the last line of defense. With the dispute, in the search for other solutions, such as negotiation, mediation, arbitration, the case of no avail, and finally can go to court to uphold Justice by the court. But if all the disputes and, ultimately, the courts have the right to accept it to achieve social Justice? court in addition to solving social conflicts, are there other functions? judicial function determines the position of Justice direction of development, judicial reform in full swing today to discuss the positioning of the judicial function has a strong practical significance.

Keywords: modern justice / feature / limitation

First, an overview of the modern judicial function
In accordance with the knowledge learned in jurisprudence, justice is the judiciary (This is the narrow sense of justice, the Court specifically refers to the judiciary and the legal procedures required by Law to handle cases involving legality, and the pArties to lend a specific protection or sanctions. from time to define the modern justice, the judiciary is under the socialist system after the effective distribution of justice. modern judicial has the following characteristics: (1) specific "litigation" exists, (2) the organization must protect, have beyond the pArties and the neutral status of contentious cases, (3) the independent judges, (4) procedural safeguards, similar to natural justice and must follow the principles of due process, (5) exist as a state power, and with a strong political of legislative and executive powers to maintain a certain tension.

Function is the object must satisfy the principal needs. Modern judicial function is a function of the modern judicial and effectiveness, has to be probability, reflecting the community to meet the needs of modern justice. Judicial function of legal and other social systems as a link between and intermediaries, which operate through the administration of justice (courts exercise the judicial power or jurisdiction while the real impact of social life. and the court has two basic functions: First, criminal cases, sentencing criminal offenders, and second, hearing Civil and administrative cases, impose Civil and administrative disputes. punishing criminal offenders, on the one hand combat and eliminate criminals and criminal activity, on the other hand the role of community education with the warning, so as to protect and safeguard social stability purposes. punishable by Civil and administrative disputes, on the one hand to soothe and resolve all disputes and conflicts of interest, on the other hand through the legal means to regulate and balance the interests of various social and economic relations, so as to achieve social stability and economic order, and to prevent conflicts of interest arising because of the economic social and political conflicts. Therefore, the purpose of judicial functions : pacify social conflicts and disputes, maintain, and ensure social stability.

But the judicial function why it can be described as benevolent see benevolence and the wise see wisdom. Some people think that the functioning of justice is nothing more than the balance of interests [1], suggested that the judicial function is to resolve the dispute [2], suggested that the functioning of justice have to expand the trend derived creation of rules, social control, power constraints and other functions [3]. Whenever there is always the basic functions of functions, derivatives capabilities and nature of the function, therefore, the author of modern judicial function is divided into two kinds: basic functions and political functions. The basic function the political function is to function outside of the essence in the performance of political functions of the basic functions of the judiciary to play on the basis of the derived function.

Second, the modern judicial function of orientation
(A function of the rule of Law is the essential function of modern judicial
The focus is on the rule of Law governing the right model. [4] adopted in a "separation of powers" theory of the state, judicial power with executive power, legislative power of the corresponding, and common roots in the Constitution. Although China did not accept the "three powers separation "concept, but this does not prevent us from a technical academic point of view," separation of powers. "from the" right "division point of view, you can see, judicial power is the power of the constitutional level, the basic form of state power content. justice is the key to run the Law. the nature of the judicial power of the rulers of different cognitive reflect different political ideology. Similarly, the rulers of the judicial power of the cognitive differences are directly reflected in the positioning of the judicial function. human general history of the existence of two different types of judicial functions: the rule of man and the rule of Law in the judicial function of the judicial function. slave society, feudal society, justice is the judicial function of the rule of man, a small number of those in power will determine the values of justice, the law in Many important principles are often a result of the value of people, time, place and be abandoned or altered Artificially. modern justice is justice is a characteristic of democracy, justice will no longer be the ruler of a small number of tools, but to check the power of the people, according to and protection of the rights of the sword. socialist rule of law and justice shall be of the judicial function. Second, the judicial power with the social power of the property. [5] is a special judicial powers, which stand between the state power and social power between . judicial power with the passive, it needs to stArt the pArticipation of social forces (prosecution, rather than the executive power has the initiative. In particular, the judicial power in the Civil rights and make decisions between state power, embodies the power of the citizens of the State control. judicial power from the opposition in the state and society, she always stood social side of the control of the country [6].

Therefore, the rule of law embodies the modern connotation of judicial power, both state power and social power quality. Modern judicial functions must reflect the judicial power of the rule of law. Judicial function of the rule of law function in the level of micro-and macro functions with two appearances. As a micro- Functional significance of the judicial power of the constraints on, control, protection of rights, coordination of implementation in the case, the subject of judicial passivity characteristics. as a function of the macro sense, the passive character of judicial behavior has disappeared in the administration of justice achieved through the accumulation of a large number of cases to promote the whole society, affecting among. macro function is to justice on the national and social development of the overall historical perspective to the positioning function. if someone pointed out: "Justice has a macro function, that is, through the trial to safeguard national order, promote economic and social development. any one country when the judiciary in the exercise of jurisdiction, are to a certain period of judicial policy that is regulated through the exercise of judicial power to achieve social relations Suoyu oriented, the goal or from the ruling party specific period of time the center of the work, or from the judicial organs of the specific degree of social concern. Although the judiciary in different countries in different ways to carry out their own justice policy, but in dealing with social disputes through the judicial same time, influence judicial decisions, the promotion of social disputes solved as reflected in the common social issues are interlinked. "[7]
(B dispute the basic functions of the judiciary
Judicial function is to referee the first case. [8] of the judicial function is mainly determined, that is ruling the dispute. History shows that social development, justice as a dispute settlement mechanism, since human beings and human society since the birth companions. In the most junior political society, the social structure was not yet differentiated, as the head of primitive tribes, while the administration and the administration of justice responsible for two functions, both social affairs management and the social arbiter of disputes. In the process of tribal leaders to resolve disputes in the face of the same or similar long-term social disputes, a series of procedures or steps for the program formed and fixed over time, become a long-term follow and apply the style, that is, for now we are talking about or procedural law procedural law . the human person at the time Chile beginning, yet I do not know the rights, obligations, etc. of the mass, the justice as a social disputes settlement mechanism has emerged. Liang Zhiping pointed out that the focus of dispute resolution is not to determine what people or maintenance rights, but to identify good and evil, to calm disputes and restore the ideal of harmony: a moral principle organized in accordance with the order. [9]
After the victory of the bourgeois revolution, the bourgeois Enlightenment thinkers advocated the separation of powers can be applied to political practice, ideological, administrative and judicial situation of combined was broken, replaced by a pattern of separation of powers. Judicial separation of the legislative, executive with an independent character, judicial supremacy, and its social disputes in the settlement even more powerful features and outstanding. particularly in the Anglo-American countries and even in some Civil law countries, civil litigation, whether criminal Huoshi, in theory and in practice believe that the basic functions of the judiciary than to solve social disputes, resolve social conflicts and social contradictions, but the involvement of the two main social disputes, the nature and intensity is different.

Although it is not separation of powers of the state, but justice has to achieve social justice are the last line of defense capabilities, along with the advance of the process of rule of law is gradually strengthening. From the existence of judicial power, the original purposes, its function is the authority to resolve disputes that have occurred and makes the interests of all the laws are implemented through specific cases. [10] the Court as a dispute resolution center there. When disputes can not be resolved by other means, people can be resorting to judicial proceedings. In fact, with the development of society, in modern times, except for some extremely sensitive political and diplomatic disputes, the judiciary has won the most urgent need to address those specific disputes. and across the ocean has long been keen to start Discussion: In addition to thinking, no act can have sufficient reason to reject judicial review, even the traditional view that justice should not be involved in the foreign and defense affairs. The main reason this phenomenon are: first, the judicial power of the state compulsory backing to the institutional arrangements of the way, set the priority of the form of court decisions, effectiveness, and thus it has the other agencies do not have the authority, in particular, is the ultimate authority to settle disputes, and the second, the formation of a complete set of judicial relatively independent of the system and fair procedures, if you do not take into account efficiency, even with justice, and the third, the judiciary as an institution dedicated to resolve disputes, to a unified solution of all disputes, regardless of what the main conflict among the other dispute resolution tend to have significant limitations, such as arbitration is often only limited to resolve issues relating to civil disputes, the fourth, the judiciary to resolve disputes as a specialized body, the members of the highly specialized, in addressing disputes with a relatively stable capacity. justice can be pursued by people to provide a relatively fair and impartial procedures for relief, but also be able to see the legal procedures so that people feel the impartiality of justice.

(C judicial and political functions
Limited to the traditional judicial function to resolve private disputes between the society that occurred. But with social development and the evolution of the judicial system, judicial and gradually break through the barriers of the original field of private law to regulate citizens and government, citizens and the state and other public law areas of infiltration . transcendental and independent judicial power and the status of the formation of an insurmountable set for the judicial function of the authority of the development of a vast sky, can be said that the judicial function of social dispute resolution in Western countries has been the expansion and to play vividly. If the United States " Watergate "," Clinton sex scandal, "Japan's" Lockheed case, "India's" Rao case "so that these cases involved government leaders, modern judicial functions has become very strong. from In a sense, modern judicial expansion of the political realm that the future judicial development of a trend.

1, the social control function
Social control is through religious, moral, legal and other means, arranged on people's behavior, adjustment of social relations, maintain social order, and ultimately serve the interests of the social control of human ways. In the social control mechanisms, the administration of justice feature is that it is organized by virtue of political power and authority to the abstract legal norms into reality in the control of human behavior, this control is the direct control of individual behavior and general behavior of the organic combination of tension control, [11] people in the predictability and certainty into the actual process conditions, so that their behavior is the actual control. control function is to maintain social and political authority in real terms, as a means of social control laws imposed on each person pressure forced him to maintain a civilized society and prevent him from engaging in antisocial behavior. [12] through the judicial process, express or implied that people should do not what to do. Meanwhile, the trial judge must all act in accordance with the values and code of conduct through the trial, this particular idea to promote, through repeated judicial activities to be strengthened, thus internalized in the public's hearts and guide their behavior to follow the mainstream values.

2, the power restriction function
"Social control through the law" can not be "government by law to control society," the one-way understanding. This social control also includes the control of government by law, it is not the main control on the outside but a transcendent system of subject and control subject unity.

Modern justice and traditional justice the most important difference is that the power constraint functions. The modern history of the judicial activities of the judicial activities and compared its significance is not its function in a purely legal changes - such as the interpretation of the law and punishment of crime can be said that the basic functions of that never varies, but in the judicial and political relations have undergone substantial change arbitrarily. [13] This means that substantial changes had to deal with major social and legal and judicial structure of the population, it can also be used Statute of the behavior of government agencies and officials.

Links to Research Papers Download http://www.hi138.com Specifically, the restrictive function of modern judicial power play in two main forms:
(1 administrative proceedings. Administrative proceedings are typical "civil rights and state power to compete" form. In modern society, especially from the traditional "police state" to "welfare state" in transition, the increasingly prominent expansion of executive power . Accordingly, violations of civil rights cases more likely. So when the administrative body and administrative disputes between the relative can not be resolved by the parties or their own solutions may damage the rights and interests relative to the time executive, administrative proceedings is made. the legal system The clear trend is devoting himself to combat offensive against arbitrary and capricious administration the right to freely dispose of the abuse. [14]
(2 judicial review. It is the court through the judicial process to review the legislative and executive authorities ruled the laws, decrees, and a breach of the constitution of a power. Judicial review of the theoretical basis for the implementation of the modern state constitutionalism. By the elected representatives composition of the Constitution enacted by the legislature is the people's spirit of modern society totem, with a maximum force of law, laws, decrees and government action may not conflict with them. and the court as a judicial organ, is the essence of the guardian of the Constitution, a declaration violation of the Constitution expressly provides the right of legislation to be invalid. [15] judicial review is the essence of the modern judicial power, so that Ellman that "judicial rejected the application of the law and the extent and scope of such authority may be regarded as indicator of the degree of judicial independence. "[16] However, as China is not the abstract administrative act incorporated the scope of judicial review, the most important the lack of an administrative area of the conventional legal controls, greatly affected the specific judicial review of administrative acts effect. But in reality, most of the common administrative law began abstract administrative act. such as farmers burden, the burden can be said that most farmers are by the executive of the "normative document" caused. As does not give these "normative documents "can be actionable, resulting in a large number of farmers petition. In China, the petition system under the social pressure and the judicial function of the state of play there is a clear inverse relationship, it has" turned the issue "feature, once the basic administration the judicial function is not in place, there will be a large number of petitions phenomenon. And because the court also assume administrative control of the functions of the normal functioning of the interest will reduce the expression of a large number of petitions into the system. The long-festering problem that we institutional arrangements exist some shortcomings. Therefore, the rule of law from the real needs and objectives of nation-building point of view, and gradually incorporated the abstract judicial review of administrative action should be the scope of judicial reform trend.

3, the public policy functions
The so-called public decision-making, in essence, is to address social, political, and economic issues of the government action, that can be used to reflect the decision-makers the means to achieve the desired results. Public affairs decision-making is often seen as the prerogative of a specific authority of the agency. Courts to decision-making, the extent to which decision-making, traditional justice and the modern judicial practice different. In the traditional justice system, the main basis for the judges to resolve disputes, both norms and ideas to address specific cases. given numerous responsibilities inherent in the judicial dispute ended. The court The Role of the defenders of social security and order, public decision-making power sole power in the hands of the highest authority or agency. Even if some decision-making power in the differentiation of national institutions, but also mainly in the central and local governments as well as the administrative, legislative authority sharing of Justice is not passed resolves a dispute in the macro decision-making power.

However, the trend of social development, since the power restriction to be necessary, then the court in resolving disputes, not the legislative and administrative matters related to or involving little, obviously can not refuse to trial. On the contrary, based on the law and facts to make their own judgments, should be court duties. Thus, the court can and should be judged by the formation of trials, participation in public affairs decision-making. but it should be noted, taking into account its own characteristics and conditions, it features a high degree of play is not the reality of judicial decision-making . First, the characteristics of the decision of the Court of Justice can only be passive, with a dependent decision-makers. The Court can not take the initiative to find the case and therefore can not take the initiative to develop policies, can only wait for the parties to submit cases and invited to participate, and the legislature, active decision-making in the executive branch is not the same. Second, the limited jurisdiction determines the scope of the limited nature of judicial decision-making. The court trial is limited to the parties to initiate a prosecution, and the legislative or executive decision-making compared to the small scope of judicial decision-making much more. Third, the inherent jurisdiction of the Court also required the weak policy formulation should be carefully carried out, the judiciary can only be very necessary in order to play in the decision-making functions. Fourth, the limited Information hinder policy-making functions of the play. any macro decisions are depends on the overall decision-making Information, while the characteristics of judicial proceedings - the judge must be neutral, passive, decided the judge can only rely on Information provided by the parties. and tend to personal abilities and interests of the parties to provide Information may result in inadequate or inaccurate, of course, influence decisions of the accuracy, timeliness. Fifth, the judicial decision-making was limited. judge did not own the means of implementation, have to rely on the social consciousness of obedience and administrative cooperation, but this type of litigation at the macro decision-making do not always able to to. Sixth, the decision-making functions of modern judicial interpretation of the law and its associated behaviors. The judge in the absence of express provisions of law to fill loopholes in the law, or law or conflict is not clear when creative interpretation or create new case, its decision is beyond the scope of a particular case, the dispute involved the solution of social problems generated ideas and solutions ripple effect to the relevant areas of policy formulation and implementation. Finally, the modern judicial public policy-making function is usually done by Negative and positive affirmation of the negative type are two ways to play. Negative Negative by declaring a law, law and policy for the law to intervene in public policy is invalid, that his policy outlook, positive affirmative constitutional or statutory law by interpreting active established policy.

Third, the restrictions of modern judicial function
The limitations of the judicial function itself, partly because the characteristics of justice caused the other hand, construction of the judicial system itself is flawed.

(A judicial passivity
Judicial power is a right to judge, the judge related to the use of judicial power, authority or need to sue and be sued individuals, not citizens, organizations or countries for the launching of judicial proceedings, the case will not be incorporated into the vision of justice to them. So Justice The response is always the case for its referees, judicial cases have occurred only while the face is not happening for the administration of justice would not make pro-active response. judicial passivity makes the lack of proper judicial predictability .

(B weakening of judicial power
The relationship between justice and politics very closely, from a perspective of justice for political service. Judicial power can effectively restrict the operation of executive and legislative power, judicial power, but in reality has always been from generation to now in weaker position, thus impeding the judicial function effectively. as in the three judicial procedural law provides for judicial recommendations to the executive power, but the lack of supervisory mechanisms, implementation of the recommendations of Justice is the lack of supervision and accountability investigated, resulting in the exercise of this right and come to the surface a mere formality.

(Construction of the three imperfect justice system
The limitations of the judicial function is an important aspect of the judicial system itself, the problems.'s Body from the side of justice, said justice would inevitably lead to its own characteristic limitations of the judicial function, such as the time system, time system is an important justice system. It is established to the principles of judicial efficiency and economy, but the establishment of the system will inevitably affect the realization of a just and true discovery aspects. judicial system is the main body of the judiciary and the use of judicial power judges, the judiciary is different from the establishment of national requirements, the judges elected national mechanism is different, expertise can be measured through quantifiable standards, but the judges also need to have inherent moral qualities of this is really difficult to judge. If the judge does not meet the quality requirements of the rule of law and justice, then the judicial function of the limitations of judicial power because the people running the defects revealed.

Another limitation of the judicial function and judicial system is also intimately related to the existence of the judicial function of the play needs of the public have for the administration of justice generally recognized. If the judicial authority is not really established, it will not be seen as a justice of Justice The last line of defense, people will not want to have disputes through judicial means to resolve it other ways, such a judicial useless.

In summary, the modern judicial function should be rational understanding, we must attach importance to its basic function, the court can not refuse to referee, but also understand its essential function, the judge in the "law-making" process nor is any one pleases, while the but also to strengthen the function of the judiciary's political awareness. However, in practice, the judiciary can not solve all social disputes, it resolves a dispute will feature on its head, according to the law court is not entirely the referee, judicial and political functions can not be the larger play, in this regard because of the limitations of justice, is more important is the establishment of any system in the real world there is always more or less running the alienation or dislocation, because the system can not set up to consider all the circumstances, when, and more choice in the interests of the establishment, in addition to the continuous development of society is changing.



Notes:
[I] Sun Yongxing: <<On balance the interests of justice functions> ", in <<Chongqing SOCIAL SCIENCES">, 2006 11.

[Ii] Song Shi, Huai-New: <<Justice in Building a Harmonious Society - also on the mediation in dispute resolution in the value>>, China Court Net.

[Iii] Jianghong Zhen, Li Xueyao: <<On the Justice of the original and derivative features> ", in <<Legal Forum>> 19 No. 2.

[Iv] Zhuo Zeyuan: <<Jurisprudence>>, Legal Publishing House, October 1998 edition, the first 377,434 pages.

[V] Zhou Yongkun: <<nature of judicial power and judicial reform strategy>> Renmin University of China Information and Data, 2004, No. 4, p. 17.

[Vi] Ibid, p. 18
[Vii] Sun Wansheng: <<Song Yushui practical value of the ad litem method> ", in <<People's Court News>>, May 23, 2005," <rule of law, the Times>> B version.

[Viii] Arthur tayor, The Civil Law System, little, Brown and company 1957, p.134.

[Ix] Liang Zhiping: <<search for harmony in the natural order>> China Politics and Law University Press, 1997 edition, p. 230.

[X] Chen Ruihua: <<judicial power of nature - as an example to the analysis of criminal justice> ", in <<Law Research">, Vol 22, No. 5, 2000 edition, p. 36.

[Xi] Cheng Zhuru: <<judicial reform and political development>>, China Social Sciences Publishing House, 2001 Edition, pages 190-193.

[Xii] [U.S.] Luopang De: <<social control by law, the legal task>>, Shenzong Ling, Dong Shizhong translation, The Commercial Press, 1984 edition, p. 8-9.

[Xiii] Hu Wei: <<judicial politics>>, Joint Publishing (Hong Kong Limited, 1994, p. 225-226 pages.

[Xiv] [U.S.] Ellman: <<Comparative Legal Culture>>, He Weifang, such as translation, life SDX Joint Publishing, 1990, p. 245, 258.

[Xv] [U.S.] Hamilton, Jay, Madison: <<Federalist Papers>>, every process, such as such as translation, The Commercial Press, 1997 edition, p. 39.

[Xvi] the same [14]. Links http://www.hi138.com Research Papers Download