Reflection Research On Active Judiciary

In recent years, Wang Shengjun, the President of the Supreme People’s Court,emphasized “the courts must fully understand the new situation of the currenteconomic and social development, play the trial function and strengthen the ActiveJudiciary” repeatedly. Gong Pixiang, the president of Jiangsu Provincial HigherPeople’s court once said,“China must follow the road of Active Judiciary”. Variousmedia publicized and praised it. Many scholars responded to it in an active way andpublished relevant articles to discuss the significance of Active Judiciary.There is no denying that Active Judiciary has its positive significance. However,in the current China’s judicial environment, it is still under discussion whether it issuitable to profile the Active Judiciary and to take Active Judiciary as judicialphilosophy. China has a long history under the rule of man. The feudal society whichwas under the imperial dictatorship lasted for thousands of years. China hasn’t reallygot rid of the rule of man until1949. It is a fact that the people in our country had ashallow legal consciousness ranging from the founding of New China to the CulturalRevolution. The true legal consciousness has taken shape after Culture Revolution. In1982, with the Communist Party of China taking the lead, it is stipulated in the newParty Constitution that “the party’s activities must be in accordance to theConstitution and laws”, whose spirit was written in the Constitution in this year. Theconcept of “rule of law” wasn’t written into our constitution until1999. For mostpeople, the law consciousness and concept has just started and it’s too early for us totalk about Active Judiciary. So it is necessary for us to rethink of Active Judiciary. Byanalyzing the dilemma of Active Judiciary in theory and reality, we hope to find aproper way to apply Active Judiciary and to realize social fairness and justice in realsense.The thesis is divided into five parts.The introduction part simply discusses the emerging background of judicial activism in our country which is good for the coming analysis of Active Judiciary.The first chapter mainly elaborates on the connotation of Active Judiciary. Theconnotation of Active Judiciary in China was explored through the definition ofAmerican judicial activism. In addition, mediation is one of the main aspects injudicial activism. The Supreme People’s court has established the principle of“meditation first and the combination of meditation and judgment”.The second chapter mainly analyzes the theoretical predicament of ActiveJudiciary in China. The rule of law, democracy and justice is the primary purpose ofjudicial activity. Based on the discussion of the rule of law, democracy and justice,the writer has proved that Active Judiciary is not feasible in China from theperspective of legal philosophy.The third chapter mainly analyzes the practical predicament of running ActiveJudiciary in China. The Chinese judicial independence has not been truly realized, thequality of the judge is relatively low and judicial efficiency has to be improved,which has seriously restricted the effect of implementing Active Judiciary.The fourth chapter is about the suggestions and reflection of running ActiveJudiciary in China. Although Active Judiciary is not suitable for Chinese situation, itsimplementation is the general trend. Based on the discussion of persisting ActiveJudiciary principle, the definition of judicial restraint philosophy and the relationshipbetween Active Judiciary and politics, it is expected to be able to provide some ideasfor the implementation of Active Judiciary.