On The Active Role Of Judges And The Modes Of Their Trial Power

The Court represents the judicial trial power of a country, while the judge acts as the specific undertaker. The modern litigation structure requires the judge act in a medial and impartial manner, which determines the inactive and passive role of the judge in the litigation procedures. However, the complete inactiveness and passiveness of the judges will not be satisfactory, since the judge should be active in the judicial judgment.The justice is embodied with the four features passiveness, proceeding, impartiality and judgment, of which, the passiveness is the most important one. The passive nature of the justice comes from the launch of the judicial procedures and the design of the legal system. The research on the active role of the judges does not contradict the passive nature of the justice. The impartiality, as the essential requirement of justice, is divided into the impartiality of entity and the impartiality of proceedings. The justice comprises the law element as the object and human element as the subjective. During the judicial proceedings, the human element as the judicial subjective is of critical importance, and the judicial result is on the hand of the referee-the judge. It is the necessary requirement of the impartiality of justice to promote the active role of the judge. China has established a linear litigation structure for a long time. With the deepening of the judicial reform, our litigation structure is been gradually transformed into a modern structure of "isosceles triangle". During such process, some authorities of the judges virtually detrimental to the judicial impartiality are shrinking. On the other hand, the due active role remains unchanged, or turns to be even more imposing and dominant. In the modern litigation structure, the judge is placed at the vertex of the "isosceles triangle", and the two parties are placed at the two base angles respectively. As ensured by the impartiality of proceedings, the actual situation facilitates the exertion and realization of the active role of the judge. It is the demand of the practice of the judicial trial as well as the necessity of the realization of the trial power, which agrees with the direction of realization of impartiality of justice. The active role of judges refers to the self-determination and the corresponding decision-making power of the judges during their strict exercise of the law during the process of the judicial proceeding so as to realize the impartiality of justice to the maximum degree. Judges realize their task of organization by performing their trial power, while the active role is realized through the practice of trial power. The specific examples include the power to control the process after the filing of the case, the power to explain the rights during the hearings, the independent determination power in the general judgment, judicial interpretation power as to the applicable laws, power of judges to carry out investigation out of court, and so on. To prevent the uncontrolled exertion of the active role of judges, the constraints from the three aspects of purpose, mode of launch and means are advised to apply to its actual operation.