For dynamic judicial inquiry

[Abstract] generally agreed that the "judicial activism" of this concept from the United States, known as judicial activism or judicial activism. The courts of the judicial activism advocated judicial activism and the United States there are substantial areas cut in China's court promote active judicial certain necessary and reasonable. Our courts should be the implementation of dynamic Justice, and should follow the natural Laws of Justice and basic rules, and adhere to a combination of professional and judicial way.

[Paper Keywords] judicial activism, judicial activism, judicial restraint, judicial professional

Generally believed that negative and passive, neutral is the basic orientation of the judicial, judicial restraint is generally considered to run the internal rules of judicial power, however, in 2009, people's courts for the new era and the situation facing the task of the Supreme People's Court Wang Shengjun long in Ningxia, Hebei, Jiangsu and research Shique clearly stated that "judicial activism" concept. triggered a dynamic of Justice on our lively discussion. To date, the "judicial activism" in China's judicial practice and judicial use of theoretical studies has shown a popular trend, however, the current judicial practice of their profession and academia, but there is a greater understanding of deviation, some scholars even believe that their improper use may hinder China's rule of Law. For our current view of its Justice, Justice has far-reaching impact on the future, it is necessary to be certain of the interpretation and exploration.


First, the "dynamic of justice" meaning

(A) the dynamic semantics of the original Justice: The United States judicial activism was generally agreed that, "judicial activism" of this concept from the United States, known as judicial activism or judicial activism. <<Black's Law Dictionary>> is defined as : "Judicial activism is the judiciary in adjudicating cases, the specific process, do not follow precedent and to comply with the literal meaning of the statute a judicial interpretation and judicial philosophy of action based on this concept when the judiciary to play its judicial activism, it to interpret the Law more likely to respond to the results of contemporary social reality and the new trend of social evolution, rather than stick to the old statute Law or precedent in order to prevent unreasonable social consequences. "... Based on the above definition, it seems that we can sure, judicial activism in the courts of justice or judge how the dynamic process of application of the law in question.

However, the U.S. judicial activism is more important is reflected in the other hand, that the judicial review of the U.S. Supreme Court found the legislative or executive branch if the laws or regulations in clear violation of the Constitution, can declare unconstitutional the laws or regulations, making it invalid, This is judicial review of the U.S. judicial activism on the first system of judicial review originated in the United States Supreme Court through the "Marbury v. Madison," the ruling, Congress established the Federal Supreme Court review of legislation and state legislation power. Initially, the Supreme Court during the judicial review only for "essentially" the explanation that in accordance with the legislative intent of the Framers of the Constitution to interpret, but then, especially in the early 20th century to the 1950s and sixties, As technology advances, social change and other factors, the increasing social conflicts the United States, jurisdiction and scope of the types of cases continues to expand, if you press the legislative intent of the Framers of constitutional interpretation is clearly contrary to social equity, justice, because the Framers When the constitution is impossible to take into account the future development, to amend the constitution and subject to strict procedural limitations, it is only through judicial review is consistent with social equity, justice, the expansion of interpretation, while the "legislative" theory advocated judicial activism interpreting the Constitution, the legislative intent of the framers should not be limited, but not emphasized the need to follow the precedent of judicial decisions tend to reduce procedural barriers, like making a broader ruling in favor of a broad right to judicial relief, etc. .

In sum, the U.S. Justice activism mainly in two areas, namely, "judicial review''and" application of the law, "the essence is the" legislative nature, "Justice or" judge-made law. "
(B) scholars advocate of "judicial activism." This is our main method of some scholars from the judicial point of view and argue that the dynamic of justice, they believe, and judicial restraint should be opposed from the perspective of understanding and use of dynamic justice. The idea that in the social transition, the judiciary in complying with the premise of judicial passivity complemented by judicial activism, justice, legal values ​​and concepts, follow the principles of law, and make full use of judicial experience, the correct application of the law, in the case of rational factual and legal issues to make judgments based on the exercise of jurisdiction to resolve disputes and maintain social fairness and justice and order [Citation. The claim also that the judge's judicial activism is not only to define the constitutional and legal system within the competence and The specific behavior of the referee should have a reasonable, legitimate and reasonable to achieve the unity can be seen, this claim has absorbed some of the U.S. judicial activism in the dynamic thinking rational factors, but significantly different from the U.S. judicial activism, It refers only to the method of dynamic.

In summary, scholars have argued that the dynamic of justice, its essence is to ask the judge handling the case can not be mechanical, rigid to justice, but justice should be through equity, the legal reasoning in real terms, the value of a measure such dynamic legal way to handle disputes in order to achieve legal and social effects of unification.

(C) the courts of the judicial activism advocated this regard, it has been been defined, namely, "in the context of contemporary China, the so-called judicial activism, generally refers to the judge should not only passively visits at the investigators, regardless of the consequences rigid applicable law, still in the process of formation within the limits of China's judicial system, judges can and should give full play to individual initiative and wisdom, led by trial and judicial alternative dispute resolution methods to effectively solve complex disputes and social cases, strive to "Case Closed things' to achieve justice and political effects, social effects and the legal effect of the uniform." This definition, covering the judicial scholars advocated dynamic content, but did not highlight the core content . Supreme People's Court Wang Shengjun president that the people's court of justice is to play active judicial initiative, actively for the party and state work services for the economic and social development, and pointed out that China's judicial activism has three distinctive features: " service-oriented administration of justice "," active type of justice "," efficient type of justice. "Shen Yong pointed out that the Supreme People's Court vice president, people's courts, people judge judicial activism is to correctly perform the functions of the Constitution and laws, strict application of the law and justice under the premise of justice, the people of the socialist legal system requirements, and give full play the dynamic role of the judiciary to effectively "for the overall service for the people of justice."
According to the thesis, advocated by the courts of "judicial activism" is the core of people's courts how to better serve the party and the overall national situation, economic and social development services, in other words, the people's court based on the overall situation of the party and state services, the purpose of serving economic and social development needs to maximize and extend the judicial function and therefore the courts of the judicial activism advocated judicial activism and the United States there are substantial differences, while the basic idea of ​​dynamic scholars, covering the meaning of justice, emphasizing the people's court of the judicial function in the service the overall situation of the party and the country to expand and extend rather than "legislative" expansion, it is with "judicial restraint" not the same order on the basic concept from this perspective, I believe that the dynamic of Justice described as "positive justice," " active justice "has the same meaning.


Second, our courts of justice advocates the need for dynamic analysis with rational

(A) the judicial courts of the need to promote active
First, the political demand in China's political system, people's courts is an important party and state organs, people's democratic dictatorship of the tool, our Court must carry out and implement the "first three" must reflect the political, legal and people's unity. Based on this unique political needs, our courts of justice can not be a political gesture on the cold, passive, passive, but should be enthusiastic, positive, active.

Second, the needs of the community. Our society is in transition, due to social changes led to a high degree of social differentiation of the main interests of life, social relations become increasingly complex, resulting in a variety of conflicts, while the global financial crisis has brought China's unprecedented economic and social development difficulties and challenges based on the current social situation, our courts of justice need to play a dynamic role.

Third, judicial demand. After ten years of the courts of judicial reform, has yielded many achievements, but the emphasis on the professional, institutional, causing inconvenience to the general public of the litigation, litigation costs and other issues. Furthermore, our Justice, there are still a lot of judicial corruption, miscarriage of justice, judicial issues such as lax, thus seriously affecting the administration of justice, integrity, and efficient. new era of public administration of justice is too high expectations, and our court has failed to provide adequate supplies of justice based on people's justice needs, our courts of justice should be dynamic.


(B) the courts of the judicial activism advocated rationality
First, the political integration of the justice of the people in China, the judicial power is a vital political power, judicial bound to the party and the country's overall situation, economic and social development services, for the fundamental interests of the general public service the courts of "judicial activism" of the core substance, the organic form of political integration of the justice of the people. Links to free download http://www.hi138.com Second, focus on the social effects of administration of justice. the rule of law The implementation will depend on public participation, the rule of law is not high level of our country, to raise public awareness of the rule of law in one of the most direct way, than by focusing on a specific trial or certain types of cases, to stimulate public concern about the rule of law, so cases a judge can not mechanically apply the law, to pay attention to social effects. At present, the court's judicial activism is to ask the administration of justice must focus on the legal effects and social effects of unification.

Third, the emphasis on equitable justice. Equitable administration of justice, is to emphasize that to achieve justice in law, reason and emotion of the organic integration of the past ten years, judicial reform, emphasizing the rules of governance, institutionalization, but to some extent, ignored many of the parties to the rules are not familiar with, do not understand, resulting in the full realization of rights of action is difficult, therefore, is to emphasize the active judges of the judicial process in appropriate method, according to the facts of the case, from a social equity, justice point of view, balance the rights of parties to the litigation.

Fourth, promote diversification of the dispute settlement mechanism. At present, China is in the social transition, the diversification of social interests, interests and needs has become more diversified, which requires the use of diversity, rather than for the sole judge of way, and diversified social solution Indeed, conflicts and disputes in practice to achieve good social effects, such as in the sentence is generally not high rate of implementation of the case, emphasizing mediation and implementation of docking, very valuable, because the mediation concluded after the automatic discharge rates tend to be high, resulting , the case will also increase the rate of implementation.


Third, the judicial courts of the future dynamic path

(A) of the Court of Justice should not be promoted active
I believe that the active promotion of justice is worthwhile, it should be from a comprehensive analysis of the pros and cons of both, re-choice.

For the benefit of, first, the courts of the judicial activism advocated judicial activism with the West is essentially different from its own core content, while covering the dynamic judicial scholars advocate the basic content of its advocacy of the need for reasonable of highlights, followed by China since ancient times positive, active judicial tradition, the majority of people also want the Court to take the initiative to justice for the parties to solve problems. Finally, the road of the rule of law in China has its own characteristics, not necessarily in accordance with Western model of development to go.

From the disadvantages, we must face, our courts of justice has not yet initiated the formation of a dynamic sound system of rules, the performance of its extension is also not clear, clearly defined, together with the concept of traditional justice, the judge of human nature, policy considerations and other factors, in practice, if there is no reasonable guidance and regulation may indeed cause some judges in the judicial activism or not active when I do not know or even recklessness, which affects the rule of law.

General pros and cons of the new era of our courts of justice should not be promoted active, I hold a positive attitude, the key is how the future is correct, a reasonable dynamic justice, how to play an active role in judicial activism, how to curb the negative impact of judicial activism, judicial change to prevent dynamic into judicial recklessness.

(B) How should the courts of judicial activism
In my opinion, should be active around the possible future abuses of justice and a study this end, I propose the following recommendations:
First, we must follow certain basic rules do not restrict the dynamic rules of justice, justice will inevitably lead to rashness. In my opinion, should have to follow these basic rules: first, to be the party and the country's fundamental policy values ​​can not go beyond the current the Constitution and laws, the expansion of judicial power can not be unlimited, can not engage in judicial legislation of the second, by the unified arrangements of the Supreme Court, local courts at all levels in accordance with the requirements of the Supreme Court ordered the implementation and supervision of top-down and guidance, the court can not allow the individual or any individual judge and the line third, the central administration of justice must focus on work started. the trial court is the nature of the work of other court-related work required for the trial service the fourth , asking the court to the overall dynamic, but it does not mean that individual judges do not attach importance to the dynamic, organic process to be a good relationship between the two. Fifth, asking the judge in the trial event full IQ, EQ and the role of Law and Business, choose the most appropriate methods and timing, using the right way to resolve disputes. not too much emphasis on judicial discretion and interpretation of the law. Sixth, the requirements of the uniform application of the law, judges apply the law, the measure of justice to be unified, standardized referee standards, made the case against the judge illegal activities.

Secondly, we must adhere to the inherent judicial restraint from the strict sense, justice is the national law applicable to judicial rulings dispute special events, and legislative and executive compared to operation with a passive, neutral, legal and final signature. In view of this, often in the operation of the judicial power to adopt a position of self-restraint. I think this is started the judiciary of jurisdiction must adhere to the position so, does this mean that the courts of justice and advocated judicial restraint contrary to the dynamic ? I believe that the two are not incompatible, the key is how to accurately grasp the relationship between the first, from the objective perspective, the two are not incompatible. Both are to fully and effectively safeguard the legitimate rights and interests. Second, the Court must adhere to the judicial activism judicial restraint inherent in, for example: To comply with the principle of non-warning ignored, the court may not appeal to their parties have not unauthorized disposition of the matter, the court shall order to maintain the grounds of the local economy and active "door" looking for dispute resolution, etc. However, the judge will stick to the inherent judicial restraint when they can not mechanically passive, passive, neutral, pay attention to sense of propriety, otherwise, may indirectly damage to the interests of the parties, such as, in the proceedings, the party's strong awareness of the law, understand the rules of litigation, and the other party's legal awareness is weak, the rule simply does not suit understand, or both parties do not understand the procedural rules of litigation capabilities are poor, etc. run into these situations, if the judge or negative, passive, not the reasonableness of the parties to release tomorrow, will undoubtedly affect the legitimate interests of the parties to achieve. Therefore, the judge will stick to the inherent negative, passive, neutral position when the referee, but also the specific circumstances of the case to play a dynamic role of the judiciary.

Finally, to the judicial career into a foundation, not to counteract the price into the judicial career is generally considered that, more than ten years of judicial reform, the direction of the main emphasis on professionalism, specialization, institutionalization, which to some extent, to promote the professional community The establishment of a judicial career of promoting the process, however, proved one-sided emphasis on professionalism and justice can not fully meet the needs of justice in our society based on the situation and tasks the new era, China's judicial court of the dynamic concept. this Does this mean justice denied in the past too much emphasis on professional practices such as? the possibility of the court to return to the "powers doctrine?" The answer is clearly no. The reason why our courts will propose the concept of judicial activism, on the one hand the party and the state asked the court to be adjusting their work ethic on the other hand, is indeed the judicial reform over the past existence of certain deficiencies, we need to further improve, but reasonable in line with the practice of judicial law, we must adhere to for example, mode of trial in the judicial system and the level of the current litigation in general is reasonable, but some unreasonable need to be reinforced by judicial activism, perfect. in some ways is concerned, our courts advocated dynamic justice, judicial reform is one of China's past reflect an adjustment, rather than a denial of judicial reform in the past, still into the basis of a judicial career, not to counteract judicial career into the price.

In summary, I believe that our courts of justice as long as the dynamic inherent in the judicial rules and follow the basic rules, and adhere to a combination of professional and judicial road will be out of a rule of law in China's national conditions of the road. Links to free download http://www.hi138.com