The Judge Made A Preliminary Study

Judge is judge-made law in judicial activities, when the existing legal norms appear missing or vulnerable cases, occurred in specific cases in order to resolve the judicial practice, judges can be based on legal principles, in compliance with the spirit of the law, as a means of interpretation of law or judicial decision form, create force rules of the creative activity of the judiciary on cases. In upholding the rule of law, promoting the rule of law in the contemporary era, the core role of law are self-evident. Law is not perfect, however, and legal defects is always present. Due to the limitations of human knowledge and society forward, blank areas of the law and the judge’s duties, makes it inevitable to judge-made law. From ancient Chinese and foreign law we are raised to give a judge limited law-making functions to compensate for the defects of the law. Common law countries of judge-made law theory and practice of history after a long period of testing and development have reached a mature stage of perfection. Contemporary of judge-made law in civil law countries have gradually entered the stage has to be accepted and acknowledged.Law of our country origin is to work out law, be statute law mainly country. Hitherto unknown revolution of type happened in social and economic activities after the reform and openness,legislation have also got through development of high speed. Our country makes the grand goal having brought forward construction socialist country ruled by law clear, with market economy system building-up, both the legislation now having to our country and judiciary be confronted with new challenges. Have80%the above law case to be to relate to civil sum commercial affairs law case in the law case that our country court tries now now. Quality has had more highly demand of these reality to judge, both judge method in the past and judicial functions must ask the benign progress to develop ability more well adapting to the Chinese judiciary in the instantly. Our country legislation taking form in collectivism times and planned economy period can not already very good the authority adapting to market economy in the instantly and realizing individual is telling a demand, the judge is conflicting with the current situation that various law effect and social effect appearance deviate from being confronted with feeling and law ceaselessly, already unable very good facing is following the pattern of only depend on experience and machinized statute law suitable for use unceasingly coming to legal action spring tide, facing the austere judiciary is real judicial authority and justice are confronted with hitherto unknown challenge.The judge has made law possibility and necessity having existence developing in Chinese, has already has become the fact not arguing. That construction judicial precedent system makes an explanation with the judiciary is that our country judge makes the main form modeling after. The judge ought to can not only skilled statute law suitable for use, ought to be good at discovering statute law moreover purpose contained implicitly by the back. One of judicial mission is in realizing the objective purpose discovering a law in court decision. Our country judge gap between being confronted with the reality making up legislation sum society in actual judicial practice, that the judge requires that law capital discovering statute law failing to include and embody is true, makes that be used to resolve a dispute and, plays have arrived at active importance role to advancement of society development. Accommodate oneself to like that one coin has double one kind, that the judge makes law also is able to have a defect to compose in reply one reality there existing this in problem, facing, we do not respond to blind forbiddance cancels but being the development ought to proceed orderly uses whose perfect. This way, ability are realized ultimately managing state affairs according to law, that the judge is popular is that legal institutions is popular, rule the target perhaps being that the country is popular by law.This paper is divided into five parts, the introduction of this paper described the background and significance of topics, and the research status at home and abroad were summarized, puts forward the key problems to solve and the research characteristics. The second part puts forward the judge-made law concept as well as the judge made law should follow the boundaries and premise, discusses the judge-made law basic value.The third part mainly talks about the judge-made law should follow the scope and judge-made law method.The fourth part of the contemporary Chinese judge-made law has the feasibility and problems faced, and put forward improving contemporary Chinese judge-made law suggestion.The fifth part is a conclusion.