On Active Judiciary In Contemporary China

The raise of the concept of active judiciary is under special background and it hasalready been the general practice of the present China’s judicial organs. Judicialorgans take itas judicial system while the Highest Judicial Authority takes it asjudicial concept. The present active judiciary in China could not generally bemeasured or evaluated using the concept, logic, reasoning or theory of related systemfrom western jurisprudence. However, in the process of deepening and innovation of anew round of judicial reform for active judiciary, by profound rethinking of all kindsof evils and alienation of judicial power, we are questioning whether a suitablejudicial model for the current situation of China has been found, whether the activejudiciary is suitable for the rule of law and the legitimate social order, and whether thepractice of the contemporary active judiciary would make law provide a morevirtuous and more satisfying life for China and Chinese people. From my point ofview, the questioning of these problems is, in essence, the questioning of thelegitimacy of the current active judiciary in China and it is also the consideration ofthe relationship of the nature or trend of the contemporary active judiciary and thepresent entire social order. Based on the thinking of active judiciary under Chineseenvironment, this dissertation starts from judicial theory, develops in the practice ofactive judiciary and concludes with the claim of new theory in China’s law circles.This dissertation is composed of three parts–introduction, main body and conclusion.And the main body is divided into seven chapters.The introduction part generalizes the research motivation, research idea andresearch methods. It starts from the attention to jurisprudence, introduces the contextof active judiciary under Chinese environment and raises the question of Chinesejurisprudence.The first chapter analyzes inner mechanism of active judiciary. On the basis of theclarification of the raise of active judiciary and its background, this chaptersummarizes the concept of active judiciary, and further reveals the inevitable cause that active judiciary should become a necessity in the process of development.The second chapter is about the history and nature of active judiciary in westernjudicial. It concentrates on the difference between western active judiciary andChina’s active judiciary and it specifies the decree to research and solve the Chineseproblem.The third chapter is about the history of active judiciary. From the source of activejudiciary to the development of active judiciary, it discusses the various forms ofancient active judiciary, especially the active judiciary in the Shanxi-Gansu-NingxiaRegion that takes Ma Xiwu trial mode as the core.The fourth chapter is about the practice of active judiciary. From an example of acase about group disputes, it interprets the operation of active judiciary and furtheranalyzes the main mode of practice of active judiciary-judicial conciliation, whichdiscloses the political nature of conciliation.The fifth chapter analyzes the active judiciary in terms of judicial system. From theview of Guangdong Court’s implementation of the teamwork mechanism and activeimplementation of the system construction, it introduces the construction of judicialsystem deep-seatedprofoundly.The sixth chapter discusses the reciprocity of active judiciary and reality. From theobservation of active judiciary and the supervision of National People’s Congress, theprocuratorate and the public, it reveals the influence of China’s judiciary in the nationand society.The seventh chapter discusses the influence of active judiciary to judicial mainbody–courts and judges. It focuses on the influence of active judiciary to the positionand function of courts and to the mode of thinking, ways of working and occupationalqualities of judges. It tries to explain effectiveness of active judiciary to transform thesociety and people’s worldview and values.Through the philosophic thinking of active judiciary, the conclusion puts forwardthe proposition of the rationalization of practice of Chinese judicial jurisprudence.