The Legal Of Active Judiciary

Since the concept of"active judiciary"was strongly advocated by the Supreme People's Court, the claim is considered to be the basic concept of justice and fundamental way. However,there is constantly controversy over this in academic and professional. Some scholars believe that Active Judiciary is the chinization of Judicial Activism,it can help to mediate the growing social conflicts and resolve the social disputes;also some scholars believe that Active Judiciary does not have the legitimacy,it completely depart from the tradition of judicial restraint and easily lead to the absence,offside and dislocation of court functions.I think that,china is in a critical period of social transition,it is necessary to change judicial philosophy of a period with the development and process of society and combined with Chinese specific national conditions. On the contrary, this is a manifestation of Chinese judicial development.Active Judiciary is not a simple migration of Judicial Activism,there are connections and differences between them. From the ancient judicial traditions and modern judicial demand, Active Judiciary has the basis for existence in Chinese society.As a new judicial philosophy, Active Judiciary must abide by certain principles when it moves.For example, Active Judiciary can not be contrary to legislation,it must be operating within the Constitution and laws and must uphold the legal value.This paper may through the legal analysis of Active Judiciary to research the basis for existence of Active Judiciary in China and then focused on the principles it should follow.The purpose of topics is to make some principles to prevent the abuse of power when the court use the jurisdiction.As there is few studies of Active Judiciary,so it will help the academic and professional to recognize the importance and urgency of the problem and then to do more in-depth study in this issue through this paper.Well implement the Active Judiciary and to promote Chinese judicial development.