Flexible Judicial Theory Of Contemporary Chinese Context

Flexible justice as a judicial policy with Chinese characteristics, is the judicialpractice department in response to the transition period of China sharp socialcontradictions brought out. But the judicial practice and the theory of flexible judicialunderstanding is differ from man to man, and the people’s courts at all levels inpractice there are many not standard places. In this paper, through combing theflexible judicial theory, understand the flexible judicial theoretical background;through the analysis of flexible judicial justice, grasp the flexible judicial connotationand manifestation; through the flexible judicial system, to realize the flexible judicialstandardized operation; the flexible judicial review, judicial prevention flexible maylead to adverse effect.This article is divided into four partsThe first part is the judicial flexibility theory. The flexible judicial concept tomake a simple definition, the author thinks the flexible judicial is people judge inaccordance with the law to exercise judicial power of judges in the time, politicalresponsibility, behavior standard, occupation morals, people feeling considerationmethod of work, work, work attitude. Followed by analysis of the flexible judicial therealistic background, flexible justice is in the Party Central Committee put forward"socialist rule of law" and the concept of" harmonious society" concept as its realisticbackground. In fact, as the flexible judicial kernel" rule by law" and" harmonious"ideas find by hard and thorough search and in the traditional Chinese culture and itstheoretical root. Finally, through the flexible judicature and judicial activism judicialrestraint, the comparison we can find that the western legal culture also contains theessence of the theory of flexible judicial.Second part for Chinese context flexible judicial justice. This article refers tojudicial justice flexible flexible judicial have the important meaning, is the flexiblejudicial intrinsic essence is specific reflect. First pointed out that the flexible judicialis judicial activism and judicial restraint unification, because the flexible judicial needboth moderate judicial activism, also need appropriate judicial restraint, only torealize the uniform to realize the flexible judicial. Secondly it is pointed out thatflexible administration of justice is the unification of legal effect and social effect, thelegal effect and the social effect is the law of social regulation function of twoimportant aspects, not on any one aspect. Reiterates that the flexible judicial is single and the diversity of organic union, should emphasize judicial adjudication is the workof the court, but also exert mediation, reconciliation and other means to resolve socialcontradictions of the role, eventually meet each other, to achieve a variety of meansfor adjusting the organic combination.The third part is a flexible justice in contemporary China path, that give judgesthe reasonable discretion is the premise to realize flexible justice, if a judge does nothave any discretion in applying the law, will lose the possibility of flexible operation.And the pursuit of the referee’s acceptability is realizes the flexible judicial direction,called the referee ’s acceptability is refers to the court of justice has to judge theaudience recognized and accepted by attributes. Modern public power operation, haveacceptability requirements. While the realization of judicial flexibility is the primarymeans to improve the mediation system. Mediation is the ethical content into thesolution of correcting mechanism, with modest means to address the conflict, so thatthe opposing sides of the mutual understanding and tolerance of voluntarycompromise agreement. Mediation itself has the characteristic, become the realizationof justice must rely on the main means of flexible.The fourth part is the flexible judicial equilibrium path. For the flexible processthat may occur in practice, mainly from the judge’s right of discretion reasonablycontrol; correctly handle the legal and folk custom, moral and public relations;mediation system marginal consideration of three aspects of flexible judicial arethinking on the system, with a view to the flexible judicial promoted a morescientific and complete theory. The judge’s right of discretion is not a boundlesspower, nor in any situation without the occurrence of a condition, but a relativefreedom. The judicial referee acceptability, its essence is the embodiment of justice inthe extent to which polled or moral participation, blindly pursuing justiceacceptability, the law will likely become the moral opinion appendage, results mayultimately damaging to judicial authority. To resolve social conflicts, the mediationsystem has its advantages, but in the judicial practice emphasizing judicial mediation,judicial mediation of court jurisdiction with alternative, blindly emphasizes, hard tonecan only be.