The Comparativean Analysis Of Judicial Activism

The judicial question in reality is complex . Facing with the shortcoming of the law and the interrelated case which is occurring or going to occur, For pursue the unification of law effect and social effect, we should broaden our horizon and search the measure which is out of the legislation and inside of the nomocracy .The essence of judicial is passivity, which is the basic maxim of the judicial activism. After the analysis , we will discover the difference and general character between the UK-US legal system and mainland legal system . Firstly, the development's beginning of the theory is different Secondly, the limitation to the judge is different .Thirdly, the consequence of the judicial activism is different. Meanwhile ,the same spot is that both the UK-US legal system and mainland legal system opposite to the behavior of preinstall general entity standard .The Condition of existence of the judicial activism is :on one hand ,the litigant is the prime mover ,not the jurisdiction; on the other hand ,the aim of the judicial activism is to solve the concrete question ,which is the basic difference between the legislation and the judicature. In our country, the judicial activism is the primary coverage of positive judicature .Referencing the judicial activism of the west to be able to realize the judicial activism of Chinese .We should differ the general judicial interpretation and the judicial interpretation of the independent case .The later one is right which manifested the instruction function. Under the instruction function of the supreme people's court ,how we treatment the freedom decides of the independent case is the key of the judicial activism .So we should reform the rank of the court.