Judicial Consideration Of Public Policy

Public policy is a kind of public action plan,scheme and criterion which government and other social public authority can realize social goals, solve social problems. Public policy is especially related with judicature closely. Public policy often plays its roles as remedy when the judge faces blanks and oversights of law, so from the viewpoint of the writer, public policy should be regarded as informal legal source which is different from formal legal source such as legislation which originated from democratic procedure. Although justice should be the foundation of public policy, the question of adequacy should be considered. Because excessively application will threaten people's private right, public policy rule should be applied actively and restrictively during the process of judicial adjudication. So,it is very necessary to carry on the rational position in the relation between public policy and law of our country.Some measures should be taken to prevent the public policy shocking and weakening the authority of the law,prevent the function of the law being twisted or replaced by the public policy.It's widespread phenomenon that public policy's intervention in the judicature,especially for the background rushing toward modernization impelled mainly by the government, which made the interference more protruding and complicated.Then how to study,explain and control the phenomenon theoretically has become an important subject in the research of the legality modernization.The above subject has not only the theoretical meaning to the recognition between the public policy and the law as well as its basic value of the society,but also the practical meaning to solve the problems about the public policy relating to the justice and the connection of the judicial sentence and the social development.The article discusses the above issues from the following four aspects:The first chapter systematically analyzes the public policy. This part defines the concept of public policy from the perspective of policy and jurisprudence, and then analyzes the features of public policy, public policy types as well as the functions of public policy; the purpose is to provide the theory basis for public policy judicial application, to study the status and role of public policy in justice.The second chapter discusses the relationship between public policy and justice. This section describes the social interaction between public policy and law, explore the relationship and difference between public policy and law, the influence of public policy on judicial as judicial reference, at the same time, we should distinguish with law, setting the necessary restrictions in the process of judicial application.The third chapter discusses public policy as a special legal source. This part analyzes the necessity of public policy, a kind of informal legal origin, as the judicial referee. And compared with domestic and abroad, researches the application of public policy in judicial referee process.The fourth chapter discusses the basic idea and mechanism of judicial application of public policy. Based on the above article, this section deeply analyses the concept, principle and mechanism throughout the process of the judicial application of public policy. To regulate and limit the judicial application of public policy, make the judicial referee coordinate with social development.