The Theory Of Judicial Activism In Modest Of Criminal Law

Active judicial or judicial activism is not inherent in the Chinese legal theory concept, but it is not in the U.S. Chinese scholars in order to analyze the specific legal issues in China, and combined with the Chinese legal context, derived from the very concept of local color theory system. But this interpretation of the scientific itself is not fully equipped, has even goes against the essence of the theory, therefore, re-analysis of the needs of active judicial from the two aspects of the operation of the theory of the original aims and reality.In the field of criminal justice, active judicial introduction of such impact otherwise stick to the theory of criminal justice, which presented a sharp proposition: whether the development of the criminal justice must fully comply with the social changes in the value of dispute resolution, further analysis, that is active judicial Should criminal justice accepted, as well as the extent to which, on the extent to which it is possible to be accepted. Therefore, this issue involves not only the basic concept and value the pursuit of criminal proceedings, criminal proceedings of the basic system design with the program running, but also the value orientation of the criminal law and spiritual purpose in the criminal justice implement. Restraining Criminal Law is the main symbol of the concept of modern criminal law, or Restraining Criminal Law is the key distinction between the concept of modern criminal law and traditional criminal law concepts. Therefore, the dynamic of the application of justice in the criminal justice must not ignore the Restraining Criminal Law. In fact, the active the judicial good practice to have to resort to the criminal law Modesty.But the problem is that we lack a clear understanding of the inherent meaning of the active judicial pursuit of a lack of understanding of the value of active judicial. Generated from active judicial look and dynamic of Justice is not a simple "proactive initiative of Justice ", but constituted by a system of theory and application system. Because of the passive nature of the judicial reason for the administration of justice, reason why crux of the difference between the legislative and executive, if only from the point of view of the initiative judicial understanding and the use of active judicial, then undoubtedly contrary judicial inherent value choice.However, modern society disputes increased social contradictions increasingly complex, requiring judicial play a more important role in the social governance, so to find a balance point is crucial. This balance point is the Criminal Modesty. Code of Criminal Procedure applicable law, criminal law, on the application of the Criminal Procedure Law, the value of the criminal law has an important influence. Restraining Criminal Law and dynamic relationship between justice. Specifically, divided into three levels:first, the active core connotation of justice; Second Restraining Criminal Law of the core requirements of active judicial; Third, in the context of China’s judicial activism judicial how to accurately understand and apply.The criminal law, which in order to avoid the greater harm of social relations. This may seem dynamic judicial requirements odds, active judicial initiative of legal oversight and application, with the obvious nature of the ex ante mechanism ". However, the contradictions are always complementary, active judicial justice passive form Passover, and then the inevitable adverse impact goals while, so need to be limited, especially in the field of criminal justice. The Modesty of criminal law precisely in line with this requirement, the corresponding limit-the stick to the concept of judicial passivity, without losing the sense of proportion-play the function of the judicial and social governance.Date blank for active judicial research in the field of criminal judicial practice, such a situation is not uncommon, but the lack of theoretical study and understanding of the dynamic justice, there are many errors. This paper attempts to theoretically comprehensive and systematic exposition of the field of criminal justice activism judicial principle, to provide a reference for the latecomer in this area of research, and also to provide a reference for the judicial practice.