Judicial Restraint And Judicial Activism Of The Trade-off

Judicial activism and judicial restraint is judicial philosophy of legal theory, the twocontinue to struggle, both reasonable. Explore judicial restraint and judicial activism, not onlyis a clear understanding of judicial restraint and dynamic, more important purpose is to find abalance between the two, to absorb their respective strengths, to achieve a balance and allowit to serve the rule of law in China.The first section introduces the concept of judicial restraint and history. By way ofcomparison, I put forward their own definition of judicial restraint on the basis of summing upthe previous concept. Judicial restraint in the judicial process, courts and judges to strictlycomply with the meaning of the rule of law and legal provisions, to reduce their ownpreferences and personal beliefs, respect for the written law, limit the discretion of a judicialphilosophy and judicial attitude.In the second part introduces the concept and history of judicial activism. The first part,but also by the method of comparison, I also made their own understanding of the dynamicjustice. Dynamic of Justice, the People’s Court is given by the State to promote politicalcivilization, and to maintain social stability, promoting economic development and otherfunctions, the use of scientific methods of work, including policy considerations, case tobalance the interests of discretion, innovation ideas extension of the trial functions, andultimately deal with the cases to the perfect unity of the legal effects and social effects, theadministration of justice to obtain it is generally recognized, so as to promote social harmonyand stability, the country’s steady scientific development. It should be noted, China’s judicialactivism judicial activism is different from the United States and other Western countries, buthas its own unique content. Definition can also be reflected in the characteristics of ourcountry.The third part is the focus of the article. I first compared the advantages of judicialrestraint and judicial activism and, and trying to build a series of principles, such a principleto guide the practice of judicial restraint and judicial activism. I made a total of four principlesare: the pursuit of judicial activism in the premise of respect for judicial restraint; to ensureprocedural justice on the basis of the pursuit of substantive justice; maintenance on the basisof judicial authority to pursue the diversification of resolving disputes; in maintaining thebasis of judicial authority the pursuit of diversification of resolving disputes. The first principle is the generality of the other three principles are explained in detail to the firstprinciples.The fourth part of this article is judicial restraint and active practice and its theoreticalsignificance. I selected the basic principles of civil and criminal proceedings, and judicialrestraint and dynamic theory, and put forward some suggestions. Concluded the meaning ofjudicial restraint and dynamic theory for the rule of law in China. Simply adhere to judicialrestraint and dynamic weigh the interests of justice to continue to adapt to the complex socialreality; conducive to the timely resolution of the contradictions and disputes; disputesresolved completely.Judicial Activism in China in the ascendant, and will seriously weigh judicial restraintand judicial activism is the legal theory and legal affairs should be of concern...