The Study Of Reconstruction Of Judicial Executive Power

Judicial executive power is an important part of state power and the basis on which judicial executive institution was built.Because of the judicial institution reform,study on judicial executive power has just begun and will last for a long time.However,this enthusiasm on judicial executive power research is just a provisional response to reality.To inquire original and basic questions within a concrete institution is hard to acquire the highness and deepness of legal philosophy.Although research on judicial executive power is abundant,the definition,nature and compositions of executive power are still not clear,lacking general conclusions.The ways to use executive power is largely the traditional ones.Difficult questions of execution have not yet solved;judicial responsibility of execution,institutions to protect executive power has not yet established.The contribution of theory to practice is not enough.This thesis tries to construct a judicial power which rule of law need,both according to principles of state power and executive rules.It traces back to the history of executive power,summarizes the rule of the changing executive power and inquires the dilemma and causes of judicial executive power study,and accordingly gives a reflection on the definition,nature and compositions of judicial executive power.Using'Comprehensively promote the rule of law,building a socialist country ruled by law'as general guidance and direction,it constructs an ideal type of judicial executive power ruled by law.Combined with this ideal type and the practice of judicial executive power,is tried to construct a judicial executive power system ruled by law.It also show the future of judicial executive power and its socialized orientation.This thesis contains six chapters.The Preface has three parts,dealing with the contexts,problem awareness,contains,aim,significance,way and method of this study,an introduction to recent study and the problems that still remain.The first chapter,'the origin and advance of judicial executive power',is important to the completeness of this study,and also the premise and extension of the rest of this study.This chapter contains four parts.The first part traces the origin of executive power and its first traits:the identity of creditor and executive subject,the orderless violence,the strength contrasted,the basic instinct as motive,the influence of productivity to the power.The second part deals with the history of judicial executive power in foreign countries.The third part is about judicial executive power in China.The fourth part deals with the advance of power corresponded to economics and society development,the state and non-state factors that contribute to the operation of judicial executive power,and the influence of advancing with times.The second chapter,'the dilemma and causes of present study on judicial executive power',treats with the dilemma and causes of executive power study,and how to re-construct the theory of executive judicial power.It contains five parts.It points out the problems of the definition of executive judicial power,maintains that the only way out of this dilemma is the improvement of judicial executive power,the errors of judicializing and misreading.The fifth part treats with the security mechanism.The third chapter,'the meaning and deconstruction of executive judicial power',tried to find a new way out.'Comprehensively promote the rule of law,building a socialist country ruled by law' as general aim,principles of state power as overall guidance,basic laws ofjudicial executive powers as main requirement,it reflects and reconsiders judicial executive power.This chapter contains three parts.The first part maintains that judicial executive power is derive from the constitution and laws,as part of the state power.The second part maintains that executive power in essence is nothing else but judicial power.The third part is a deconstruction of executive judicial power,and points out the way to the improvement of executive judicial power.The fourth chapter,'constructing an ideal type of executive judicial power',tries to construct an ideal type of judicial executive power according to the above mentioned aim,guidance and requirement.This chapter contains four parts.The first argument for the necessity of constructing an ideal type,the second to fourth construct three ideal types:of the arrangement of judicial executive power,of the compositions of judicial executive power,and of the external circumstance of judicial executive power.The fifth chapter,'the reconstruction of judicial executive power',focus on the general aim 'Comprehensively promote the rule of law,building a socialist country ruled by law',tries to improve,reform and reconstruct the present judicial executive power system.This chapter contains three parts.Firstly,it reconstructs the power on the basis of the separation of judicial power and executive power,using 'two steps' to complete the separation,and establishs executive permission system.Secondly,it tries to legalize the operation of judicial executive power,to realize the applicant oriented transformation.Thirdly,the professionalism of executors,the responsibility,the supervision system and the right relief of the power,all contribute to the security of the power.The sixth chapter,'the socialization of judicial executive power',points out that socialization is not only the future of judicial executive power,but also its basic form of existence.It contains four parts.Firstly,about the 'outsourcing' of the power,improvement of reconciliation institution,alienation of the power to the applicant,and the realization of the socialization.Secondly,about the end of the monopoly the state power,the protection of civil society,the participation of social forces,the end of 'better executed by state than society'theory.Thirdly,to construct a basic frame for power execution:including the premises,conditions,motives,and limits of the socialization of the judicial executive power.Fourthly,about the state responsibilities,which includes rules of conduct,supervision of the social subjects,the remedy of their errors,and the deficiency of their ability.