Concerning On Judicial Initiative

Judicial justice is move to the change of traditional operation mode, and it gives power of creating rules to judge when a loophole in the law or precedent is loss. The judge had created through certain rules of access to a wide range of adaptability. Thus full legal origin, and influence to judicial practice. The western theory of justice has hundreds of initiative theory in history. Until today, the prevalence of judicial activism still cannot change the opponents and the debate will continue. But could not deny the reality is judicial activism has profound influence on people's life and the progress of the judicial system has been obtained. China is in the period of social transformation in particular, in which the problems and challenges the justice faced is great. How to cope becomes a realistic problem. The financial crisis brought about a significant influence on economy in our country, and also put forward to the judicial field. In order to cope with the problems caused by the financial crisis, China's judicial organs adopted a series of characteristic with obvious judicial initiative. Judicial practice upon judicial initiative theory has been proved effective. But the reality of China and western countries have bigger difference, could not fully apply the theory of judicial initiative abroad. As a modern judicial justice active part of the content, the core concept will be used in our reference. It is why the Chinese judicial initiative proposition will be exist.There is a track that thought whole writing. Reference the judicial initiative theory in continental law system and Anglo-American law system, and explain the basic content of judicial initiative theory. This paper analyses the existence of positive and negative factors. We take China's judicial initiative measures under the financial crisis as foundation when summarizing the characteristic of judicial initiative. At last, we combine with the practical conditions and put forward the problems to be concerned in the development of judicial initiative.The first part of the content of justice is the theoretical connotation and denotation motivation. The origin, definition of the theory will be introduced. Then we conclude the characteristic as flexibility, restriction, and procedural. At last we analyze the mode of judge-made law in western countries.The second part is about the theory of supporters and opponents of judicial initiative. The points of view will be analyzed literally. The further proof will base on the positive and negative effects which judicial initiative may bring.The third part introduces the problems we faced and the measures we took. There are three parts about the measure. These measures are laid off by different objects.The fourth part to China's actual conditions, put forward in the necessity of judicial reform and development process of judicial initiative that should be paid attention to problems and attempt to solve the problem. This part includes the legal legitimacy and judicial activism, mode, boundaries and process, etc.The innovation of this paper is to take the financial crisis in China for realistic background and the measures taken as the research object for specific judicial initiative study. Not only in theory about theory, is combining the practical with research necessary. Therefore, understanding, analysis of problem solving and are not separated from actual existence, which have stronger practicality and pertinence.