Research On Judicature Of Human Rights

The purpose of this paper is to discuss the following questions, namely in the shift of the ages background that the center of China's socialist legal construction has been achieved from emphasis on legislation to pay more attention to the implementation of the laws, actively explore the method of the reality of legal human rights by judicial, so by enhancing the effectiveness of judicial in protection of human rights by law to overcome the potential problems of the current judicial practice which emphasis on the protection of procedural rights and one hand provides a possible theoretical reference and model selection for perfecting the mechanism of judicial guarantee of human rights in the future, on the other hand provides a more circumspect path for the maximize implementation of human rights realistic goals of China by the middle of this century just as "China Dream" will come true. This paper tries to put forward the theoretical proposition of "Judicature of Human Rights " and actively explore other issues related such as the institutional practice of mechanism on the basis of investigating different semantic features and value attributes of "the judicial protection of human rights"."Judicature of Human Rights "or "Protection of Human Rights by Judicial ", refers to any citizen's legal rights being infringed and obtain the real demand of public power relief practical, then they can direct appeal to the judicial power to get comprehensive, timely and effective relief. "Judicature of Human Rights " advocates that the judicial should uphold the position of the principle of "whenever "and" integrity "on the protection of human rights, emphasize the judicial should pay attention to the final confirmation and actively implement of the realization of legal human rights on the premise of legalization of human rights, emphasize the dominant position of judicial in the reality of human rights. Its characteristic mainly includes: reveals the logical inevitability, highlight the reality necessity, reflects the social practice, emphasize the implementation of progressive.This paper explore the logical reasoning of "Judicature of Human Rights "mainly from two angles of "possibility theory" and "realistic necessity". One hand, the writer has explored how possible problems of "Judicature of Human Rights "by going back and reexamines the basic connotation and realistic demands of the basic legal principle of "the equality of human rights", "where there's a right, there's a relief", "human rights justiciability theory" and "the essence of judicial power". firstly, "everyone enjoys the rights of equal concern and respect " (Dworkin) is the legal philosophy basis of "Judicature of Human Rights",which reveals the essence equality attribute of human rights and stress the absoluteness and unconditional in the respect and protection of human rights.Secondly, "where there's a right, there's a relief", which has effectively communicated of the specific rights of appeal and the relief means of rule of law (judicial is also), is the basis of the rule of law of "Judicature of Human Rights"and provide the system safeguard for reality of "the equal rights of concern and respect "in the further. Thirdly, justiciability of human rights is the key to demonstrate the proposition of "Judicature of Human Rights". "Justiciability of Human Rights" actually refers to "Justiciability of Legal Human Rights",which is the combination of "human rights can be claimed"and "the suit of law"in essence, claims for the "whenever" and "integrity" of organic public power (judicial) to human rights relief of Features. Finally, the theory of the nature of judicial, which emphasizes modern judicial has charged with the sacred historical mission of protection of the rights of individuals to achieve since its formation and look human rights as the ultimate objective and realistic pursuit, is a supplement to "Judicature of Human Rights". In addition. This paper also discussed the realistic necessity of'Judicature of Human Rights"from other practical point of view such as the human rights realization process, development of judicial modernization and construction of rule of law in China and so on.The value of "Judicature of Human Rights"is mainly reflected in two aspects of theory and practice. From the theoretical point of view, "Judicature of Human Rights"is the key elements of distinguishing the modern judicial from the traditional one, is the logic premise of modern judicial independent from the administrative power, is the rational return to the real path of reality of human rights of the society under the rule of law. The second is on the practical level, "Judicature of Human Rights" help to improve our country current judicial safeguard mechanism of human rights and actively guide the future development of the cause of human rights of China.The practice mechanism of "Judicature of Human Rights" is the ultimate goal of this paper and proposed the theoretical constructs that protect human rights by human rights court system. Human rights court is the special judicial organs to deal specifically with human rights disputes. Firstly, institutional settings, main consideration of two kinds of shape:first of all, its external level can consider setting in trans provincial level, the inter provincial domain can be according to the similarity in different parts of the geographical features, historical and cultural traditions and religious beliefs factors determine; secondly, the internal department can consider to set up different specific court of human rights as a whole, such as environmental protection and other courts, to realize the allocation of judicial resources and planning as a whole and intensive. The second,the personnel composition of the court should take into account of the balance of the four major elements of human rights case as the following, such as practice, politics, theory and social, so we should take the strategy of "determined the specific sources according to the nature of the different composition of personnel" to avoid pure judicial tendency. The third is the trial of the case range,.The cases the Human Rights Court accepted shall be only limited to the the basic rights disputes which has not yet been clarified by specific department of law or trial itself has reasonable doubts about the human rights cases by ordinary judicial process. The fourth is about trial level effect. The Human Rights Court implement the system of Final Appeal, and the Supreme People's Court Responsible for the procedure of second instance; If this procedure involve the controversy of Constitutional issues, the Supreme Court should draw the NPC Standing Committee to make Constitutional interpretation or explanation, the Supreme Court to make a final decision accordingly.