Judicial Analysis Of Public Policy

It's quite common for the public policy's interference of the judicature, especially for an abrupt modernization background impelled mainly by the government, which made the interference more protruding and complicated. Then how to study ,explain and control the phenomenon theoretically has become an important subject of the research of the legality modernization. The above subject has not only the theoretical meaning to the recognition between the public policy and the law as well as its basic value to the society , but also the practical meaning to the dealing with the problems about the public policy relating to the justice and the connection of the judicial sentence and the social development.The essay is consisted of the introduction and four chapters . Beginning with several confused phenomenon, the conducting remarks put forward the topic concerning with the relationship of the public policy and the judiciary while confining the relating concepts to outline the range of the demonstration. Surrounding relations among the public policy , the law and the judiciary ,the first chapter makes an investigation of the three dominating occidental law theory schools besides theirs representatives' viewpoints so as to obtain a theoretical contour and to supply a theoretical positioning and reference as well for the interpretation of the interference of the public policy into the judicature. The second part comes to develop the understanding angle of the author's own after analyzing and inquiring into the relations of the public policy and the judicature in the dififerent angles of the law theory, the judiciary and public policy theory. By sketching the present situation of the interaction of the pubic policy and the judicature including the legal supports, the access and function system, the third part probes into the cause of the situation and confirms the evidence of existence in our legal practice. The last piece pursues the fixed space of the public policy in the legal practice so as to orientate the trend of judiciary mode. By recovering the position, function and limit and analyzing the reasons of the different judicial manifestation about the public policy, the author expands the comprehensive demonstration to foster the judicial theory of the public policy.The essay suggests that the interference of the public policy with the judiciary is unavoidable on its economical and social basis. Of course , the interference has its different manifestation under different circumstances. No matter how complex the law and the public policy interact, the law-oriented judicature is the principal while the policy-oriented is the subsidiary. As the support of the judicature , it's limited by not only the structure and distribution of the power the efficiency, but also the rights. For the basic rights which is not transferable, the public policy is not able to interfere with. But for the transferable ones, the practice of public policy should be abided by the discipline of the distribution of property rights.