Embedding And Forming Mechanism Of Judicial Ability On The Analyzing Context Of National Governance's Change

This dissertation discuss judicial ability's embedding and forming mechanism on the context of national governance's change, make known national governance structure, pattern, tactics and method's deep influence in the development of judicial ability, analyze judicial ability's new need,new pattern and corresponding promoting way.In the first chapter, I discuss the theme of "judicial ability's implication and classification".Firstly,I analyze the origin of the word "judicial ability".Secondly,I simply definite "judicial ability" combining macro-angle with micro-angle and subjective factor with objective factor. Finally,I regard judicial ability as multiple levels and angles-ability system and basically classify it from multiple angles including the content of judicial post,the realization of judicial value and judicial function.In the second chapter, I discuss the theme of "western embedded theory and the embedded mechanism ". In this chapter, I elaborate Polanyi and Granovetter's embedded theory, its new development and judicial application;I analyze the political embeddedness of judicial ability on the angle of political ideology's influence on judicial subconsciousness, political support to its realization and political driving force to its development;I analyze the social embeddedness of judicial ability on the angle of embeddedness in social structure, orientation in social justice and structure in social fact; I analyze the institutional embeddedness of judicial ability on the angle of institutional selection, constraint, direction, internalization and innovation etc.In the third chapter, I discuss the theme of "western legal governance paradigm and judicial ability forming mechanism".In this chapter I refine legal governance paradigm on the angle of change from free state to welfare state and from welfare state to security safeguard state,conclude the respective characteristic of formalism legal paradigm, substantive legal paradigm and proceduralism legal paradigm and their internal effect on judicial ability and analyze judicial ability's embedding and forming mechanism in different legal paradigm.In the fourth chapter, I discuss the theme of "ancient centralized rule and special judicial ability form". In this chapter, I analyze the internal relation between judicial ability and judicial official selection, oppressive judicial officials, morally lofty judicial officials, judicial muyou assist and torture system on the angle of ancient centralized rule,then analyze the single governing target and limited national capacity's influence on judicial ability,in the end I draw the general conclusion that ancient judicial ability take on trong embedability,and frailty and special form.In the fifth chapter, I discuss the theme of " rural governance in the transforming period and judicial ability required form. In this chapter,I analyze the characteristics of the transition from rural society to post rural society;I explain " autonomy ","political control ","legal control " and " collaborative leadership " different relational pattern between state power and rural self governance;I dissect the inherent relationship between the dispute's change in post rural society, traditional dispute resolution mechanism's weakness, comprehensive management system and holistic requirements for judicial ability;I explain the application ability of the local knowledge,judge's nterpretation ability and coordination ability outside the case in post rural judicature on the basis of two types'differentiation.In the sixth chapter, I discuss the theme of "summarize the relationship between national governance modernization and judicial ability". In this chapter,firstly I sum up national governance modernization's implication and characteristics,secondly I analyze its basic elements and their correlation,thirdly I expound inherent relationship between national governance modernization and the orientation of judicial function,the pursuit of judicial value,the improvement of judicial system,the enhancement of judicial ability.In the seventh chapter, I discuss the theme of "national governance modernization, judicial socialization and the formation of new judicial ability." In this chapter,firstly I clarify the theoretical changing course of the relationship between the state and society in western countries,secondly I look ahead the relationship between them in the context of national governance modernization,thirdly I expound the implication, main contents and necessity of judicial socialization,in the end I analyze specifically the theoretical and realistic basis and constructing path of the judicial connecting ability to ADR and judicial review and application ability to soft law.In the eighth chapter, I discuss the theme of "national governance modernization, judicial reform in eliminating judicial administration and the modernization of judicial ability." In this chapter,firstly I analyze the implication and existing form of judicial administration;secondly I reveal the mutual relationship beween judicial administration and judicial ability;thirdly I sum up the present reform measures in eliminating judicial administration; in the end I anatomy emphatically the path dependence problem in institution, benefit and ideology which influence and restrict the modernization of judicial ability and put forward three fundamental schemes including the reinforcement of judicial reform subject's initiative,the optimization of judicial reform method and the internalization of judicial reform ideology.In the last "conclusion" part to summarize the whole dissertation,I think judicial ability construction should focus on improving the unfit embedded circumstances and make full use of the appropriate social resources.On the basis of combining "the rule of law's ideal elements ", "transitional elements" with " the modernization of national governance's elements ",we should continue to strengthen routine judicial ability construction, but also design goals and road map s of new judicial ability in order to make judicial ability become key in the system of national governance ability.