Theoretical Study And System Reform Of Active Justice

This article start from the theoretical interpretation and have systematic research on the basic characteristics and basic principle of active justice, on the basis of a comparative study between active justice and judicial activism, and between active justice and judicial restraint, have made in-depth analysis of the necessity, feasibility, mode selection and value orientation of practice active justice in China, put forward the corresponding reform measures with moderate active justice on the civil justice perspective finally.Firstly, based on the study of domestic and international research, from three aspects which are "to advance with the times", people-oriented and pragmatic, this article made the in-depth analysis of the basic principle of active justice. At the same time, on four aspects to describe the characteristics of Chinese active justice, which are certainty of goals, particularity of subject, coordination of approach and initiative of attitude. On these base, concluded the research significance of active justice in legal, political and judicial view, and put forward the research ideas and methods of practice active justice in China on legal theory and legal practice direction.Secondly, the article made comparative study between active justice and judicial activism, and between active justice and judicial restraint, made in-depth analysis of the main differences in judicial goals, justice theory, judicial subject and judicial process between active justice and judicial activism; made in-depth analysis of the main differences in constitutional foundation, philosophy base and judicial practice between active justice and judicial restraint. On the basis of comparative study, from judicial rules, difference of national conditions, balance of power, etc., concluded three enlightenments to practice active justice in China. This article also made theoretical groundwork and mental prepare with theory and practice basis for practice active justice in China.Thirdly, the article focus on the practice of active justice, emphatically elaborated the dialectical relationship between judges’ability and practice active justice in China. Point out the composition of professional ethics of judges, as well as the ideas to reinforce the professional ethics of judges. Including:connect law education and vocational training system to repair professional ethics education system of judges; reform the rules of judges’ professional access, positions selection, positions rotation, performance assessment and mandatory exit, to repair professional ethics administration system of judges; connect internal supervision and external supervision, to repair professional ethics supervision system of judges.Fourthly, from real justice, judicial efficiency, judicial independence and judicial reform, researched the need to practice active justice; from court executive-led, social management innovation and quality of judges, researched the possibility of practice active justice. The article based on China’s national condition and judicial practice and according to the Chinese characters and moderate reform attitude, put forward the idea of practice Chinese moderate active justice. It’s pursuit of value should be:to achieve the balance of active justice and judicial restraint; to achieve the balance of gradual reform and radical reform; to achieve the balance of judicial needs and judicial resources. The article even elaborated the risk of active justice might produce, from the principles of law, the purpose of justice, the judicial authority and judicial rules, highlighted the risk control of moderate active justice.Finally, the article focus on civil justice, in use of moderate active justice theory, in views of combination of legal effects and social effects, made research in present situation, defect and active reform measure. Include:put forward to strengthen the position of people’s court in judicial interpretation, to put public policy into the judicial interpretation and to establish a precedent system of judicial interpretation for judicial interpretation reform; put forward to improve the filing convenience system, to reform the civil preservation system, to improve the filing relief system and to establish filing open system for case filing system reform; put forward to expand the scope of the evidence investigation, to establish a scientific evidence identification system and to fix forensic management for civil evidence system reform; put forward to broaden the range of judicial relief, to improve the judicial relief management and to strengthen judicial relief for judicial relief reform; put forward to enhance the deterrence mechanism, to rich the implement method, to fix implement reconciliation mechanism, to improve the reward implement mechanism and to fix external environment for civil implement reform.