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Reflecting On " Active Judicature"

Posted on:2014-01-12Degree:MasterType:Thesis
Country:ChinaCandidate:Y HanFull Text:PDF
GTID:2256330401959177Subject:Law
Abstract/Summary:PDF Full Text Request
Financial crisis have spread to the whole word since2008, and China is also suffering. Aseries of measures have been token by the Chinese government to guarantee economic growth,value people’s livelihood and ensure social stability. the Supreme People’s Court activelyanswer the call and put forward a concept of justice with Chinese characteristics--"judicialactivism". As advocated by the leader of the Supreme People’s Court,“judicial activism"having been upheld by all levels of courts, undoubtedly become the most dazzling words inthe judiciary. But, on the other hand, there were sharp differences of opinion between theacademic circle and the judiciary on “judicial activism". The academic makes more criticismwhile the judiciary gives more praise. However, it is difficult to say who is right.This paper is organized as three parts, the first part is the summarization of “ActiveJudicature”, which mainly discusses the theory of related issues, including the background of“Active Judicature”, the meaning of “Active Judicature”, and the compare of “JudicialActivism” in America and “Active Judicature” in China. Throw the compare of the two, wecan know that they are different. The second part, the analysis of jurisprudence, focus on thetopic of “Active Judicature” and “Rule of Law”,“Active Judicature” and “Justice”,“ActiveJudicature” and “Judicial Restraint”, as a result we find that “Active Judicature” doesn’t suitthe development of the rule of law in China, which will make our society blind and confusion.The third part is the main point of this paper. At first, I collect some judicial cases fromgrass-root courts to summary the measures on the practice of “Active Judicature”. Then Icollect some data from “Law Yearbook of China” and http://www.cnki.net, which help me tofind the cost of “Active Judicature” and how to optimize the allocation of resources. Finally, Imake a complete analysis of “Active Judicature”, pointing out some problem caused by it. Ona theoretical and practical case is analyzed to be the evidence and a reasonable conclusion,which may provide some useful reference for judicial reform in China, is drawn by theauthor that “Active Judicature” should not be “active”.
Keywords/Search Tags:Active Judicature, Judicial Activism, Idea of rule of Law, The judicialinterpretation of the independent case
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