The Theory Logic And System Construction Of China’s Responsive Judicature

In the traditional judicial system, the antinomy between judicial democracy and judicial independence leads to more common judicial injustice, miscarriages of justice have occurred from time to time. The traditional judicial system has been difficult to continue. Pluralism in social transformation has more demand and expectation to the justice. Law’s own law of development also puts forward some new requirements to justice. So, judicial reform which highlights the response has become the objective trend of the development of the monocracy in the world. At present, the trend of judicial reform has manifested judicial response characteristic, which has caused the wide attention and enthusiasm of the scholars at home and abroad.The theory of deliberative democracy is a democratic theory originated in the West in the late twentieth Century. The theory focuses that all citizens have the consultations and dialogue to decision-making, legislative and judicial activities under equal participation in the context of a pluralistic society. Representatives of different interests of the parties have been involved to carry out the objective and rational argument and debate, reflection after communication, taking advantage of a "common good" and rational power of exchanges, promote mutual compromise conversion and preferences of different interests, reach a consensus and make the parties involved accept the decision at last. The core of the theory is negotiation and consensus. The theory of deliberative democracy provides a necessary and feasible solution to break the arbitrariness and closure of the traditional judicial system. In the current judicial reform, in order to enhance the legitimacy and credibility of the judicial authority, we should guarantee the independence of judges based on the exercise of jurisdiction. At the same time, we should take the deliberative democracy concepts into the field of justice and take use of the principle and institution of the deliberative democracy to reconstruct the operating mechanism of judicial power, construct a judicial participation and consultation mechanism, in order to replace the existing judicial bureaucracy, which are necessary to supervise and restrict the right to judge in the judicial process, to ensure the judicial process of objectivity and impartiality.The responsive judicature as a new judicial system adapts to the rule of evolution of the justice. Its existence is essential, legitimate and feasible. The theory of deliberative democracy is the theoretical basis of the responsive judicature. The deliberative democracy and the justice system have the connectivity within. The participation mechanism, the negotiation mechanism, the feedback mechanisms and the containment mechanism of deliberative democracy constitute the basic premise, reaction’s principle, core function and values’pursuit of the responsive judicature in turn, which form the generation logic from the deliberative democracy to the responsive judicature. The responsive justice deconstructs and reconstructs the power of judicature by getting rid of the traditional judicial arbitrariness and closure in order to transform the one-way type of judicial system in traditional society to the responsive type of judicial system in pluralistic society. It develops the judicial system from the pure internal self-control system into the Trinitarian judicial system which embodies the external controlled system and the self-control system including the system of constitutional conduction, public opinion’feedback and consultation and mediation. The new system makes the judicial power subject to the constraint of the constitution, running in the public opinion’ supervision, and realize the function of coordination and integration to the different values and interests in the plural society through the way of negotiation and mediation.