On The Transition Of China's Judicial Function

The Chinese society of the transformation period is a fractured society in which various ages compositions co-exist, the interest relation is out of balance. In such a society filled with opportunities and challenges, only by way of reform, justice can keep pace with the times, and exert aggressive and necessary functions for promoting great transform of society. But, the innovation of whether system or idea, must be launched surrounding the target that judicial functions can be more effectively exerted. By reference to judicial functions of the modern western society ruled by law, this article try to investigate the current situation of the Chinese social judicial functions, deduce the essence of the Chinese judicial functions of the transformation period, and the way to achieve it.Investigating the judicial functions of the modern western society ruled by law, there are four aspects: settling dispute, restricting the power, safeguarding human rights, formulating policies. Along with the arrival of the ages of "justice country" called by Hegel, strengthening the judicial function has already become world trend. There are two different interpretation for the just foundation of justice exerting its strong functions, one is that, as relatively isolated from the public opinion, justice has more advantage in overcoming the defects of the democracy, particularly, so-called "tyranny of the majority"; another is that, justice should be regarded as the reserved power of people in the constitutional sense, so it has the highest position.Restricted by political, economic, and cultural conditions of china of transformation period, the judicial functions are defined in a wide range, and embody the characteristic of "activity", moreover, the defect of judicial functions being too weak exposes all without omission, it is concretely expressed as: The function of settling dispute being non-authoritative ;The function of restricting power being dissimilated; The function of safeguarding human rights being peripheral; The function of formulating policies being not autonomous.In the Chinese society of the transformation period, which regards structuring the socialist harmonious society as the target, the essence of judicial functions is equating. Thejudicial equating function is extracted from the effect exerted by justice on the way of acting on concrete social relation, such as normalizing, integrating, guiding, and coordinating etc. The judicial equating function can be defined as that, justice achieves a new balance of interest relation through the technique to correct, when the social interest relation appear conflict and result in the state of obvious imbalance. The judicial equating functions are not only the time request of structuring the harmonious society, but also the substantive pursuit of Chinese traditional justice, the basic spirit of justice of modem country ruled by law, the value dimensions of postmodern society justice responding to the society.In order to exert judicial equating function effectively, the factors, such as subject, system, idea, environment, technique etc. are all necessary. Speaking concretely, the balances of main relations which should be emphasized to grasp are as follows: The first, justice being restricted and judicial independence, the key is that the limitation of judicial powers ought to be distinct; The second, the judicial rationality and the legislative rationality, the essential points is that symbiotic and complementary relation of the two side should to be established; The third, the political functions and the legal functions, the principal points lie in: exploring legal solution of political functions, normalizing the path of politics influencing justice, enhancing the judicial functions of communicating and negotiating, resolving " politicizing of trail" problem appropriately; The forth, people's freedom and national rationality, the quintessence is that human rights must be respected and safeguarded feasibly.In a word, giving prominence to the judicial equating functions is the just judicial response to the realistic requests, the basic direction in which the Chinese justice will grow up, the important value tendency of the Chinese judicial reform.