The Research On Active Justice Under The Vision Of Civil Law Interpretation

In recent years, judicial activism has become a hot research topic in law. Judicialactivism in tradition is one way of judicial trial that the jurisdiction actively make useof all resources, using of judicial means to pursue the unity between legal, political,and social effect of the three, in response to the social changes and the needs of thepeople. But from the methodology to discuss the study of judicial activism less,judicial activism in this sense means that judges in the trial process, using legalinterpretation to the referee on the case, in order to realize the legal form oflegitimacy and essence of rationality, so the study of judicial activism in civil cases isnecessary. The application of judicial activism, in the perspective of interpretation ofcivil law, should focus on the classification and analysis of judicial activism paradigmof judges in the judicial practice, then recognize that the positive judgment thinkingprocess of interpretation derived conclusion that Judges use in cases is falseappearance. And further give reasonable inquiry, the judge illusion is essentiallyconclusion decided to explain reverse thinking of judgment. Through the process ofthinking, we can see that judges using logic syllogism in the process of judicialadjudication in China are not in normal, but through a process of backtrackingreasoning of legal interpretation， and according to the legal consequence is to furtherrevise their preliminary conclusion. We need a rational view on the justice in thissense, on one hand it will bring a lot of positive effect, but also produces somenegative effects. Although the current judicial activism in China lack of norms, legalmethod can give the necessary regulation on judicial activities from the validity andlegitimacy. Therefore in the interpretation of civil law applicable to judicial activismcorrect vision shall adhere to the principle of restraint and function method on thedynamic unity, standardize, emphasizes the legal interpretation reasoning, and followthe due process. By adhering to the correct concept of justice and proper choice ofinterpretation method, to regulate the legal interpretation; use strict logical reasoningand legal argumentation of legitimacy to emphasize the reasoning of the judge; legallimits and clear lines of authority of judicial activism, to regulate the courtmanagement system.