On The Establishment And Construction Of "Responsive Judicature" In Contemporary China

At present, the China is in the social transformation period,the old system can not meet the objective needs of the reality, the legal system and the logic in the growing and social fragmentation and separation, and some shortcomings are also constantly emerging, how justice is always the topic of our generation. Various theories and practice in the "contention of a hundred schools of thought", explores the Chinese characteristic judicial mode. For example, a typical has the Supreme People’s court advocate and promote the "Judicial Activism" and a series of "new" measures; in addition to "judicial participation of social civilization and innovation","linkage justice and Conciliation","Harmonious Judicature and judicial activities to create civilization","justice, authority, clean and efficient for point to the goal of Judicial Reform Act" and "the public credibility of the judiciary and judicial democracy’ judicial reform and innovation, but also the judicial reform and innovation in itself and the related level also appeared many problems and confusion. The reason lies in: first, the transformation of the society, the pattern of interests to combination, intensification of social contradictions, on the one hand the old system is faced with reform, on the other hand, the static specification and formal logic, the lack of response to the social demand, the realization of social justice elasticity and ability; secondly, our advocacy of judicial activism, although the focus of close judicial activism on the social reality of the demand response, but in practice, there are also objective risk leads to excessive expansion of political, legal logic is distorted; finally, we need to seek alternative concepts or judicial mode, which adhere to the modern rule of law and the essence of the essence, and can effectively respond to the transition period of social goals and needs; thus, to retain the "reasonable elements of Judicial Activism", at the same time, avoid or correct the alienation of risk to the rule of law. Therefore, in accordance with "the party’s leadership, people as the unity of master and the rule of law and rule of law of socialism with Chinese characteristics, the essence and connotation, this paper take the Berkeley law school beneficial ingredients on "suppressing laws--autonomous law the law--responsive law" development of the three stage theory, put forward the contemporary China should the establishment and construction of "judicature" point of view.Response theory and method system of justice mainly include the following four parts:the first, response theory justice is the basic elaboration on the response law school of Berkeley. Berkeley school representative figure P. nonet and Selznick P. in the three types of comparison and verification of legal theory (repressive law, autonomous law and responsive law) response is put forward based on the basic theory of law, it has an important influence on the judicature theory. Second, the basic connotation of judicial response is to have the judicial result justice (the verdict) orientation; the judicial referee should pay attention to the law, principles of law, the value of the public policy and social justice considerations; at the same time, especially in the judicial process should pay attention to the subject of interaction, participation, communication, exchange, discuss and debate justice and judgment reached consensus recognition and acceptance, in the premise of procedural justice into intersubjectivity democratic participation and cooperation component to the realization of substantive justice. Third, China established the foundation of judicial response is law’s limitation, the essence of the pursuit of justice, respect for the rights and basic requirements of the maintenance of social justice needs, subjectivity and intersubjectivity and the reconstruction of social order and stability of the objective need of. Fourth, establish justice system response to abide by the fundamental principles of the rule of law and China including the spirit of rule of law, appropriately increase the democratic discourse mechanism, normative judicial interpretation, and using the right judge on legal methods and construction of judicature co-ordination and response mechanism.