Legal Methods And Active Justice

Creative Justice is said that judge’s natural reasoning and innate sense of justice motivate and lead them to depart from strict adherence to the existing laws because strictly applying the principles would no longer meet the contemporary needs of the society and would lead to injustice. And at this time, the judge would substitute their own sense of justice or political opinions for the applicable principles rather than like a traditional court. Creative Justice is attached to judicial discretion and as an important nature and expression of the existence of the presence of a large number of different groups in Modern Judicial literature as well as it’s rich harvest in creative judicial creature. Judicial Activism of Common Law also provides modern China with an unique perspective and an objective consideration in Judicial culture study. However, up to now the meaning of Creative Justice is still ambiguous and how it can be applied is still uncertain in the judicial practice of China.Title of this doctoral dissertation "Legal Method and Creative Justice:analyzing based on modern China civil and commercial cases trailing" contains of two-way effort:on one hand, it takes the border style as a legal method to explore the high level technique of handling more and more civil and commercial disputes, so as to keep race with the high-speeding developing society. From the view of modern courts, besides applying the traditional legal method that judges only interpreter the law rules and apply it accordingly, judges have to distinguish the similar facts from different hard civil and commercial cases and develop the rules in order to fill the gaps emerging form the existing law rules; on the other hand, Creative Justice has positive significance for China judicial practice. The whole dissertation will demonstrate the topic in two parts.First part intends to introduce what we know as Creative Justice under the context of modern China law jurisdictions. In an important sense legal rules are never clear, and if a rule had to be clear before it could be imposed, society would be impossible. The mechanism accepts the differences of view and ambiguities of words. It provides for the participation of the community in resolving the ambiguity by providing a forum for the discussion of policy in the gap of ambiguity. The subject matter of Creative Justice is the nature of law and its working, and legal method provides the answer of the issue of its working. Therefore legal method is at the heart of the Creative Justice. Judges should exercise Creative Justice by applying legal methods with great caution and discharge his duty abiding by the legislation. Legal method indeed contributes to the self-improvement of the law jurisdictions.This dissertation intends to demonstrate four legal methods include policy consideration, value-balancing, analogy and compromising legal methods. Policy consideration is a judicial tradition of New China, and value-balancing puts particular emphasis on the balanced view of the two sides of the conflict. Above methods give the effect ways to respond the given social needs. It’s self-evident that judge natural reasoning and innate sense of justice give birth to judicial creativity. On one hand, Creative Justice should be applied to meet society needs. On the other hand, the judgment must be more flexible and can reflect current changes in society. The substantial limitations on Creative Justice are that the judge should balance the public opinions with laws. The judgments should be dedicated to guide and evaluate the social conducts. In fact the public also need the positive and authoritative interpretations serving as guidance for them to make correct response to current social affairs. Because law and society is interactive, judge’s duty is to promote social management and maintain social order by the way of adjudicating cases. Judges should have the capacity of making his judgment acceptable by the public and apply the law properly in order to meet the local practical needs. A judge is a product of his time so he should keep pace with times.Second part tells a series of hard cases, we can discern the commence and advancement of Creative Justice in civil and commercial judicial field. In modern China, singly relying on judicial interpretations is definitely not enough, because it can not make prompt response to the social changes. Different level of legal technique results in similar cases still can not be treated similarly and equally. This issue reflects that how to regulate the Creative Justice is very important. In China, the empirical study on legal method in the context of Creative Justice is just at its inception. This issue brings us the question that how to maintain the stability and uniformity of Creative Justice. The reasonable suggestion is that when there is no relevant judicial interpretation, the individual judge should exercise his Creative Justice within the bounds of literal interpretation of the laws. In dealing with some complicated cases, as soon as the judge comes to a "crossroad", he has to decide which direction to take, the judge would apply the law carefully. So it is urgent to establish a more normative legal method system based on the case-analyzing which can ensure that the judicial system functions well and efficiently.