The Study On The Construction Of Judicial Morality

The construction of judicial morality is the eternal topic of the running state affairs awarding to law. In our country, especially after the fifteenth conference, the basic strategy is defined as to run the country by law and then recorded in the constitution by the process of legislation by the communist Party of China. Now, the construction of the judicial morality comes even more urgent .It is also the historic mission which is posed by the background about the running state affairs awarding to law and the judge's specialization. The law that it depends on has many common with the morality of socialism. They are economic basis, guiding ideology and historic mission. That's why they promote each other, complement each other and have intimate contact. The construction of morality plays an important part in the running state affairs awarding the law. The morality of socialism is the important ideological condition and foundation to realize the goal. The Ethics will be absorbed and became legal norms by legislation under certain conditions, the ethics of the judges can remedy the leak and fill up the blanks of the law;for the ethics is realized by the public opinion and the inner conviction, it can reach the depth which the laws and regulations can not reach. So, on the background of the running state awarding the law, the moral construction (including the construction of the judicial morality) also must be strengthened. The professional judges poses higher request for the ethics of the judges. It is also said that the ethics is always be prior, in the history, all of the rulers took judicial morality seriously. Reinforcing the construction of the judge's ethics is determined by the occupational characteristics of the judges. It is necessary to realize the justice. The moral construction will never be replaced by other regulatory means, because it has unique effect and function. The judicial morality is the basic elements of the professional judges. Every judge should have the basic quality and character, which is also the requirement of the judge basic ethics norms, and they should make it part of their life and soul. The judge ethics is the prerequisite and the promotion to realize the judge's specialization.The logical thinking of this dissertation part of the research of the construction of the judicial morality is: analyze the current actuality of the judicial morality of China, sum up the basic achievements, find out the main trouble and the main cause, then aim at the matter, take appropriate measure including reconstruct the moral system, and strengthen the external restriction;and investigate the objective rule of the construction of judicial morality.The Aim that we analyze actuality is discovering the fact of the construction of the judicialmorality. We have obtained great achievement in judicial morality constructing. We have drawn a plenty of rules of concerned judicial morality;the judge disciplinary punishment system has been put into effect;examples of outstanding judges were set up and the modern judicial morality has been internalized. But there are still some problems, for example: the quality of judges is not very high, judicial corruption and judicial unfairness. The main reason is the influence of the market economy, the legal restraint system on the judges is not very perfect, the personnel management system is not very scientific and leaving over barnyard of morality, some judges have weak self-restraint ability, and so on. In the light of these problems, which insist in the construction of judicial morality, we must take the corresponding countermeasure, reinforce the construction of judicial morality.The moral standards system construct of the judge is very important. The moral standards have the external restraint and the guidance function to people's behavior .The external restraint function manifested in the moral standard provided the moral appraisal objective standard. The moral standard may help build certain public opinion and atmosphere, and this will from the invisible pressure to the people behavior choice. Besides these, the moral standard also may display the supervisor function and it also has the obvious guidance function. Through inspiriting moral approval, strengthening morals faith, inducting and adjusting moral behaviors will guide people's behavior to conform to the social morals standard. All countries have their own moral standards to their judge. Although they have different expressions, we can find some common principles and standards among them. Just like obeying the law, the justice, the honesty, the independence, the diligentness, the avoidance and so on. These common principles and standards have universal significance, so our state should adopt them. At the same time, we should take different treatment. Obeying the law, the justice and the honesty may belong to the basic level of the moral standard, the independence and the avoidance may belong to the level of the system safeguard, and the diligentness may belong to the level of the work requirement. But we should base on the situation of our country. In order to achieve this point, we should put serve the people at the first place, then, set up the criterion of the judicial morality. It consists of: loyaling to constitution and the law, persisting the judicature is fair, keeping honesty, manifesting the judicial conscience and so on.Achieving justice is the primary value of judicial morality. Through multi-angle inspection, the point of the author is: The justice refers to the lawsuit constitution to be fair, that is to say it is the integration of the fair of lawsuit process and the fair of lawsuit result, and it is also the integration of the procedure fair and the entity fair. Since long ago we have the problem in the judicial practice. That is think much of entity but think little of procedure. Although the entity fair is important, we must emphasize the procedure fair to make it balance .The procedure has it's independent value, the entityfair must realize through the procedure fair;we must think much of procedure and carry it out through practice. The construction of judicial morality takes the justice as the most important value orientation. It is because, Justice is footstone of judicial activity, Judicial justice plays an important part in the realizing the entity law's justice in the stepping up judicial visualize, in the consummation and development of new order of the socialist market economy, and in the leading social ethos etc. How to realize the value of the justice? The author's viewpoint is;the realization of justice must satisfy the following requests: use the relative litigant principle lawsuit pattern;obey the laws;to enforce law fairly;overcome the regional protectionism;the procedure should be well. The judge should hold occupational ethics and treat the litigant equality. Judicial activity also should keep transparent, supervisor and have the suspicion, which do not have the rational.The stimulation of the moral need provides the intrinsic power for judge moral reconstruction. The intrinsic factor must be transferred for canying on the construction of judicial morality. For it is the internal cause of the moral need, the ethics determine the moral behavior. The external moral standard can internalize judge's desire through the stimulation of the judge's moral need. And it may get double outcome with less effort for achieving the moral goal. Once the moral occurrence mechanism react on the judge individual, the construction of judicial morality will have endless power. The judge's moral need is the psychological tendency which is someone want to observe the criterion, principle and the standard about the judge moral behavior and to be a qualified judge or to be a outstanding judge in the qualified foundation. This tendency is based on the judge's thought which is the spirit self-satisfied and the realization of the judicial understanding. The judge's moral need is the spirit need or the psychological need, it take judge as the main body and its form is brought by the social moral request and standards internalizes to judge. The internal's has the response in judge's brain, forms the moral consciousness and the moral desire. The judge moral need is also a kind of aware needs. Judges must defer to the law, the judge occupational, moral basic criterion, judge behavior standards' request engage in introspection and internalize, form the need which conforms to these standard, and then realize the justice. The moral need distinguishes people from animals;it is the basic characteristic shows the main status of human. The moral need directs the people's behavior and it has the function to conformity each kind of need, so, it is necessary to stimulate the moral need indeed. The moral need determines judges' judicial behavior, guides them to exercise the judicial authority according to the judicial fair request and keeps the social legal order. We have a lot of means to stimulate the moral needs such as: the value stimulation, the honor stimulation, the practice stimulation, the concern stimulation, the system stimulation, the environment stimulation and so on. The external restraint is the construction of judicial morality's exterior mechanism. The externalrestraint mainly refers to the restraint of the law, the regulation and each kind of control systems and it belongs to the heteronomy. For it can restrict the judge from do wrong, can avoid infinitizing the authority, prevent the corruption, strengthen judge's concept of law, the intension of the heteronomy is necessary. To strengthen the external restraint we need to form the persistent effect mechanism, establish integrity institutional framework. Including: judge moral examination and critique system, the outside restraint mechanism, the safeguard system of the construction of judicial morality, the surveillance system of many factors.To develop the judicial morality, we must develop the autonomy from the heteronomy. The autonomy and heteronomy in the construction of judicial morality are the dialectical unification: they both has the obvious difference and to be inalienable. The judicial moral standard of heteronomy must transform to the autonomies. The most important symbol of it is the judge's behavior transforms by the external guidance into the intrinsic guidance, the judge's moral standard is turned to the will request of their own, restrain their own desire voluntarily, make their behavior standard. The constructions of judicial morality moves towards the autonomy from the heteronomy have abundant theory basis. Only through the moral autonomy can cany out the law and the standard heteronomy truly. Essentially, the moral is not under the external strength force. The moral is the behavior that started by human's intrinsic morals, aware, voluntary. The judicature occupational ethics is consistent with it. To impels the judicial morality moves towards the autonomy from the heteronomy, the effective countermeasure must be taken: first of all, clear about the moral guidance, then, enhance the moral tutelage, and also grasp the concrete method. Including: studying the moral example, inspiring moral approval, participating the moral practice, advocating the spirit which requires prudent when alone, making good use of the ancient times method just like examine oneself and so on.