The Theoretical Analysis Of The "Active Judicature"in The China Context

The Theoretical Analysis of the "Active Judicature" in the China ContextAs a judicial notion," Active judicature "proposed by the Supreme People’s court official, and elaborated and publicized in a wide range. There is no doubt that the active judicature was promoted by the political purpose, lack of strict logical reasoning. Once implemented, will be subject to criticism. Active judicature itself, does not have a clear meaning. we don’t understand the limitations of active judicature. That have led to all kinds of controversy since the active judicature proposed, but generally people tend to justify the rationality of active judication from the perspective of the real-world demands of Justice, but neglect to justify from the perspective of the rule of law to reveal the active judicature against the rule of law itself. As a judicial notion proposed by the Supreme People’s court official, what we have to do is reveal its correct connotation.We need to make many kinds of argumentation and reflection, especially cannot neglect to make from the perspective of the rule of law, and even the perspective of judicial law, through the analysis and reflection of the various contradictions and problems caused by active judicature in judicial practice, we have insight into its various causes of negative results. To put forward their views.This paper begins with a brief to analyze the process of judicial reform, to grasp the history origin of active judicature, trying to show the objective original appearance of active judicature. we analyze and define the connotation of active judicature from three angles of political significance, legal significance, and comparison significance, then show that the author in the paper mainly reflect and criticize active judicature with judicial policy or political significance, then objectively describe the practice situation of active judicature in order to reveal a variety of contradictions and problems caused by active judicature. through the analysis of these three pairs of contradictions in the practice situation of active judicature, we reveal that it make a negative impact on our justice, the rule of law, the awareness of the rules, and the awareness of civil rights in china, which should give rise to our profound reflection and vigilance. Then we focus on reflecting the reasons of consequences caused by active judicature and then into active judicature as well as the objective running environment of active judicature, By analyzing the active judicature, we think that the active judicature dominated by the political thinking has led to the alienation of the essence of justice. The running objective environment of active judication, such as:the objective subsidiary disadvantaged position of the justice in the structure of power, the initial stage of the rule of law, weak legal authority and rules consciousness,the Low-level judge, in fact, which does not match with the active judicature and exacerbate the negative consequences of active judicature. This will seriously hamper and even undermine the construction of the rule of law and is not conducive to the realization of the fundamental interest of the rule of law, because of the rule of law is the largest overall.Therefore, through the reflection and criticism of active judicature, the current situation of Justice and the rule of law, we advocate making an effort to convert active judicature of political significance into active judicature of the legal methodological significance, we should adhere to the judicial activism of legal methodological significance under judicial self-restraint and regulate the inevitable "activism" in the judicial process. We should adhere to the reform of the judicial system, the depoliticization of the judicial reform, the unique nature of Justice itself to service the construction of rule of law and China’s overall situation during the transition period.