Criminal Justice In Judicial Activism And Judicial Restraint Doctrine Debate

The judicial restraint doctrine and judicial activism in legal theory which is corresponding to the judicial philosophy of two, both are constantly struggle and reciprocal state. At present our country there is no explicit judicial philosophy, and explicitly in criminal justice should pursue what kind of judicial philosophy and particularly important. This article through to the judicial restraint doctrine and the historical process of socialist judicial activism of the carding and legal philosophy foundation for their interpretation, and comparative analysis to try to seek suitable for China's current judicial philosophy.The first part:the concepts of both start first to make comb, and through and "active judicial", "active judicial" and other concepts such as two related analysis, enabled us to judicial activism socialist and judicial restraint doctrine has a clear definition and know; Then, to their law philosophy foundation are analyzed, the judicial restraint socialist law philosophy of law is based on the empirical analysis, and judicial activism is based on law philosophy of socialism law and social law nature. Based on the method of both philosophical basis, highlights the differences in interpretation in the legal theory in importance.Part 2:through the historical process of both the research we can get to their historical origin, and a clear understanding of the historical evolvement of study, can predict the future development trend of both.Part 3:in this paper, from the concrete this part in both cases of criminal trial to show the reflected, can tell the important practical significance.Part 4:based on ideas, constitutional foundation both advantages and disadvantages as well as the two comparison of their respective characteristics and display, thus make our role to its have more objective, comprehensive understanding.Part 5:through the analysis of the research present criminal justice judicial activism and judicial restraint, according to China's present situation of the particularity of the criminal trial field, in combination with the current legal system construction and the capability and level of China's social status in China, namely that orientation should be a criminal trial in judicial restraint socialist primarily, judicial activism complementary, and shall specify the socialism the conditions for socialist judicial activism.According to China's current legal construction ability and level of our country is weak, rule of law, people on the right concept of the faith than authoritative legal faith, all kinds of power, and China's judge dislocation team's overall quality and professional ability and rule of high level of national gap still bigger, especially a criminal trial has particularity, unlike field civil or administrative etc, therefore, we in criminal justice should stick to the judicial restraint socialist positions. However, again perfect law also has limitations, trying hard, and our country is currently in social transformation period, contradictions multiple, in order to effectively handle disputes, maintain social stability, which requires that we should take judicial activism socialist for added. But judicial activism socialist as an exception to clear the scope and boundaries in demand, the only legal provisions for absence or current law will generate obvious unreasonable result can apply and where applicable, to follow some principles. The research in this paper analysis, I think at present our country in a criminal trial in judicial restraint doctrine should be field primarily, judicial activism complementary, it is suitable for socialism in China in the current law practice choice.