Compare With The Judge's Initiative Of Ancient Rome And Ancient China

With the introduction of the concept of Judical Activism,how to achieve the balance between the initiative of judges and the jutice of rules is becomging to the focus. The initiative of judges is also known as the judge's equitable behavior,and not only has existed since ancient Western or ancient China but also has marked the brand of modern Judicial Activism. Magistrates Act of ancient Rome known as the first Balance law, the way it respected for the traditional of Statute law and make judicial activities active, not only adapt to the modern civil law countries, but also adapt to the same model of civil law countries of modern China. Making of law by judges 0f ancient Rome reflected in the judge magistrate notices,Programs Litigation, and the writ. The magistrate issued notices to develop new right and right of defense and amend the civil law; Judges through the Programs Litigation created new forms of action, expanded the scope of subjects and directly effected the result of Litigation; The judges in case of emergency writ created new right and formed possession system.Making of law by judges of ancient China is through the Judge's verdicts and the analogy in the use of judicial means. The performance of the judges verdict to make up for the use of legalloopholes reasonable judgments, flexibility provisions of the law, or even abandon the law. Analogies to justice is an ancient Chinese law which allows a judge to make creativity judgments when no proper law and make creativity judgments. Ancient China judges judged a lawsuit who were limited by the responsibility of judges and official liability system cultures.The mode of Ancient Rome and Ancient China is different.This difference reflect on such aspects:the according of the judges judging cases, the limited mode of the judge judging cases, the goal on litigation and cases offection of the judge sentenced on law .The reasons of the differences reflect in the background, judicial position, the quality of judges. The development of initiative of judge on ancient Rome and ancient China is not the same, reflecting the impact of the creativity of the judges of the law at that time as well as on modern law. Modern discretion of the judge in real terms between justice and formal justice strike a balance in order to achieve true justice.Modern Judicial Discretion need to balance between useing proper power of the judge and limiting the power of the judges.