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Formal Rationality And Trial

Posted on:2008-11-30Degree:MasterType:Thesis
Country:ChinaCandidate:W HeFull Text:PDF
GTID:2166360212976866Subject:Legal theory
Abstract/Summary:PDF Full Text Request
For a long time, the problem of trial has been a most debated problem, also the most important problem among the institutional problems in China. In this problem, the most important aspects are safeguarding and restriction of judicial power. The judicial system is in a dilemma: if there were no safeguarding measures for the judicial power, it may be controlled by other powers, losing its independence; if there were no restrictions on the judicial power, it may abuse the power. Therefore, finding out a balancing point between safeguarding and restriction is the key point of the solution of the problem.The formal rationality came into being and developed with the development of commercial economy. It presents the economic and institutional characteristic of the modern society, and it's the symbol of the modern society. In the process of the modernization of the society, the formal rationality acted as a tool, promoting the development of the commercial economy and expediting the modernization of the institution. The judicial reform in China now is actually a process of modernization of judicial system. Thus, this dissertation concerns on whether the formal rationality can become the aforesaid balancing point or not and on whether it can act in the process of modernization of judicial system as in the process of modernization of the society.From the power of discretion of the judge, this dissertation analyses the impact of the formal rationality on the idealized judicial system and illuminates the function of the formal rationality in the judicial system. This dissertation can be divided into five parts: the introduction illuminates reasons of analyzing the function of the formal rationality in the course of trial. The first chapter is to analyse the essence and characters of the formal rationality, and illuminates the relationship between the formal rationality and modern society. By summarizing the characteristics of judicial system, the second chapter demonstrates the relation between the formal rationality and the judicial system. Then the third chapter discusses the function of the formal rationality in safeguarding the independence and legitimization of the judicial power. Basing on that, it takes the Chinese judicial supervision system as an example to illuminate the disadvantages brought by the essential rationality, so as to demonstrate that the formal rationality is a core element of the modernizing of the judicial system. Finally, on a discussional basis, the last chapter investigates the possibility of the realization of the essential rationality judicial system. By enumerating the...
Keywords/Search Tags:formal rationality, protection of judicial power, restriction of judicial power, supervision of judicial power
PDF Full Text Request
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