On Social Functions Of The Judicial Power

Judicial power is carried out by the court on behalf of the state over the resolutionof societal disputes and conflicts with a view to the realization of state will. The powersubject is the state and its object includes all the members of the society with thedisputants all included. Generally speaking, judicial power under all social structureshas the same function of dispute resolution, social control and social integration, whichstems from the functional needs of social systems.The social transformation of Chinese society constitutes the structural context ofthe social function of judicial power and has an effect on the evolution of judicialpower per se. The social reform initiated from the 1970s marked the transformation ofthe structure of Chinese society. Before the reform, Chinese society is a holistic one.The state and society are largely homogeneous and the reformer exerts full control ofthe latter on the basis of reallocation. With the holistic organizations like Danwei(work units), individuals as well as social organizations all adhere to the state. Thesocial interest structure is homogeneous and rigid. On this holistic society, a politicaland legal tradition is thus established and people's judicature is the manifestation ofthis tradition. People's judicature attaches great importance to the popularization ofjudicature, the priority of content over procedure, intercession as a major means of trial.Our reform started the social transformation of China. The holistic structure becomestratified, hence the separation of state and society. A separate society come out of thestate and the state's control over society becomes loose. The forms of control arechanged accordingly. Reform leads to social transformation and social stratification,together with the separation of the state and society. The society is to an extentliberated from the state and the state control over it is thus weakened and the modes ofcontrol are also changed. The structure of social interests is differentiated andmobilized and the interest relation becomes the most vital one in social relations. Thejudicial reform absorbs the elements of modern judicature. While maintaining the state at the center, judicial power elevates the position of power objects relatively and itsfoundation of legitimacy tilts towards a legal authority.In terms of the function of dispute resolution, the holistic social structure greatlylimits the occurrence of social conflicts. The assertion that they all belong to thecontradiction among people also help establish the mechanism of dispute resolutionwith intercession as the main body. With the reform of civil trial, the civil judicialpower absorbs modern elements of judicature on the basis of the mode of people'sjudicature. It moves towards professionalism and specialization. Litigants are givenmore emphasis and proceduralism is also duly emphasized. One of the consequencesof China's social transformation is the immense increase of the number of socialdisputes and thus society demands the function of social dispute resolution of civiljudicial power. The legal construction of the society make people expect more fromjudicature and civil judicial power plays a leading role in the dispute resolution intransitional society. The absorption of modern judicature by the civil judicial powergreatly enhances its ability to resolve disputes, while on the other hand, it can nevermeet the urgent needs of society in terms of judicature. At the same time, thedifference between people's abilities to litigate and bring up lawsuits cannot meet theprocedural requirements of judicature. There is a widening gap between the realizationof rights and people's actual expectations, hence dissatisfaction towards civil judicialpower and its effect on resolution of social disputes. The great social demand ofdispute resolution brings up mechanisms which can accommodate multiple ways ofdispute resolution. In terms of the function of social control, civil judicial poweremploys modern law and makes it the formal means of social control and legal order.Meanwhile, as an important part of the popularization of law movement, civil judicialpower realizes the legal socialization of members of society.In our transitional society, the mixed mode of judicature between people'sjudicature and modern judicature leads to the functional disability of civil judicialpower and hinders the realization of the function of civil judicial power expected anddemanded by our society and the state's intention of social control. This further leadsto social disorganization and the legitimacy crisis of civil judicial power. Thefunctional handicap of civil judicial power stems from the special social structure of a transitional society and it is one of the consequences of the separation of society andstate law. Although the holistic society is disintegrated, state remains the strongestsocial power and plays a leading role in society. The process of modernizationincluding the modernization of the legal system is an endeavor on the part of state toreform and rebuild society and push society and social transformation forward. Stateorientation often leads to disregard for social power and social demand. Thedifferentiation of social structure leads to the creation of the private realm and societyindependent of the state. The social interest structure becomes heterogeneous andelastic. Interest relation becomes the fundamental social relation in transitional society.And the disparity between people's interests becomes bigger and bigger. Socialstructure tends to solidify, which brings forward new phenomenon. Rupture becomesthe most important feature of transitional society. The imbalance of social rightsconstitutes the basic mechanism or foundation of the rupture of society. Rupturedsociety has a social order characteristic of unfairness and power logic, and socialconflicts become eternal. While social power, including the power of thedisadvantaged become stronger with the application of internet and other newtechnologies. To overcome the functional disorder of civil judicial power, attentionshould be paid to its social source. First of all, we should endeavor to build up themechanism of balanced interest pattern with as the premise interest differentiation.Democratic legislative procedure should be referred to construct mechanisms ofinterest expression and coordination and law should be made a reflection ofdifferentiated people's interests. The gap between law and society should bediminished and removed. Secondly, state orientation should be given up in civiljudicial power. The demand of members of our society should become our startingpoint to construct appropriate mode of civil judicial power.