Concerning The Function Of Judicial Social Orientation

To realize its own value, the law must be put into the practice. It is believed that the reality of law could only be found in the judicial process, otherwise, the law is nothing but a piece of paper or a kind of dead rule and it only has cultural significance without normative significance. In short, there is no law without the justice. Working as a kind of bridge, the justice makes the legal texts be put into practice and it has lots of connections with all aspects of our social lives. Justice has a very strong demonstration effect to the choice on the value or behavior of the public showing a function of social orientation.The function of judicial social orientation depends on some characteristics of the justice itself and the audience who participate in the judicial activities. Generally speaking, people are accustomed to resort to the court to pursue the fairness and the justice, and meanwhile they often have great expectations on the adjudication made by the court. And the judicial organizations redistribute the right and obligation of the both sides of the conflict through their neutral judgment and guide the whole society on the direction by the obedience of people to the authority.Observing the current judicial practice in China, we find misalignment on the function of judicial social guidance has appeared to a great extent, that is, people treat the function of justice has obvious absolute tendency. Specifically, the characteristic of the function that it appears as a result is badly neglected, and social orientation is transformed to a kind of task which the justice should assume from the result of judicial activities, leading the basic concept of the justice is changed to "interest-based" from "justice-oriented" and the mode of operation is transformed to "active service" from "neutral referee", causing series of devastating results, such as the judge standard of judicial activities mixed, judicial neutrality can not be guaranteed, judicial authority is being challenged and so on, and these are eroding the fledgling career of the Rule of Law.Based on this, we legal persons should undertake the important task of making targeted exploration. Through the relevant investigation, we find that this phenomenon does not appear accidentally, factors like the judicial tradition in China, the asymmetry characteristics and people’s improper expectations on the justice and so on have prompted people to request the justice assuming the responsibility of social orientation. In view of the serious threat to the normal order of the Rule of Law may be brought by the emerged problems, it is necessary for us to reconsider the function of judicial social orientation, and relocate it appropriately.The author thinks that we can not treat the function of judicial social orientation absolutely while we should relatively arrange it according different context:when we can find definite statutes in the judicial process, justice should return to its tool standard; while there are not definite statutes, judicial discretionary space appears, then the justice could assume certain social orienting task, but it must be limited in the legal framework, we should pursue the justice within the law.When we have a relatively reasonable orientation on the function of judicial social orientation, we can discard the dross and select the essential, discard the false and retain the true screening from the friction between our traditional legal culture and the western concept of Rule of Law which is introduced and we should take the "rule of law" as the center to continue the judicial reform, pursuing the rationalization of the function of judicial social orientation.