Research On Active Judiciary In The View Of Functional Expansion

Judiciary in the context of Socialism with Chinese Characteristics, based onChina’s national conditions and reality, is the result of combining traditional Chineselegal culture and foreign beneficiary fruit of judicial practices.Studies on the general theory of judicial powers and their adaptation to China’sconcrete national conditions, has great theoretical values for insisting, reforming,perfecting and putting forward socialism judiciary theories and institution system aswell.In ancient ages, judicial powers were exercised concurrently by the hands ofadministrative officials in most cases, and presided over by leaders of social entitiesand communities, both of which involved extensive participation of members of thecommunity, thus endowing judicial practices with a feature of social autonomy.With the development of the society, human society found it convenient to solvedisputes by means of specific officials and formal norms. That’s way we had judges,whose job was to solve social disputes by resorting to a set of rules proven true, andmore fundamentally, to means required by the society.In this way, judiciary gradually evolved into trial activities carried out by anational organ composed of specialized personnel, which is called a court.Formation of the concept of judiciary in modern times went through the processof the combination of administrative and judicial powers as once existed in ancienttimes and the separation of administrative and judicial powers in modern times.In later middle ages, European courts and judges unfolded a trend ofspecialization and professionalization. However, this trend failed to result in theindependence of judicial powers from administrative powers.Whether it be ancient China or Rome, judicial power were subordinate toadministrative powers and centralized in the hand of monarchs.With the victory of bourgeois revolution in the modern age, judiciary withmodern connotation rose abruptly in the west. Inspired by the decentralization theory advocated by enlightenment thinkers suchas Lock and Montesquieu, capitalism nations like France, America established a stateregime with a balanced power structure among the legislative power, judicial powerand administrative power.Classification of powers in the traditional sense was, in practice, just s wishfulthinking. What’s worse, our effort to draw an abstract definition of powers such asadministrative or judicial power would possibly fruitless.In reality, owing to the fact that behavior patterns are directly under the controlof behavior object, they usually converge true information about the order of powers.Therefore, with the aid of behavior pattern theory and the method of backwardinference, we can not only clarify the domains of powers exercised by respectiveorgans, but also avoid the embarrassment of the failure to resort to a specificinstitution when new and unexpected affairs come out. The afore mentioned analysispointed out the values of behavior pattern theory as legal research methodology, andmade it possible to access judicial behaviors from the angle of behavior patterntheory.In a modern society, the functional borders among legislative, administrative andjudicial powers become more and more obscure, categories of power patterns alsorepresent a diversification trend, and functions and limits of authority of judicialpowers expand further. The present effort in this paper is to expound thetransformation of the property of judiciary in cotemporary age from the angles of thedevelopment of judicial functions, the expansion of the limit of judicial powers andmulti-dimensional macro judicial concept.” Dynamic Judiciary” shall not be deemed just as an echo to the needs ofpolitical and social requirements, or the proclamation to exploit an independentjudiciary path, but be regarded as a way of regulating judiciary, adjusting legitimacyof judiciary, and therefore, re-constructing the legitimacy foundation and eliminatinglegitimacy crisis of China’s judiciary.From this point of view, we can regard the content of “dynamic judiciary” asvarious amendments to the legitimacy of judiciary. From the perspective of politics, “dynamic judiciary” mainly manifests the political functions by means of emphasizingthe purpose of serving the overall situation, promoting economic development andparticipating social managements, so as to communicate judiciary and politics, andre-construct political legitimacy.The first round reform of Chinese courts entrenched the socialism attribution,defined the affinity to the people feature of Chinese courts, thus injectedindispensable genetic gene to Chinese courts from the perspective of superorganicpolitics; the second round reform, from the practical angle, pointed out the directionin which Chinese courts deal with the practical issues.“Three Five Reform Schema” is a reaffirmation of socialism attribution ofChinese courts in the course of the second round court reform; further, it’s a timelyadjustment in response to the challenges of reform.Just as we can’t throw kids with bathing water, we must maintain dueconnections in the course of reform, so as to prevent from denying all, down-strikingall as we once suffered in the campaigns.This is a real test of the intelligence of the reform schema makers and executors,and also one of the premises of reform’s success.