Theoretical Basis And Practice Path Of Active Judiciary

Western society has explored Activism Judicial for a long period, acquiringconsiderable achievements also. However, there is still no unified definition aboutActivism Judicial. in China. Currently, Activism Judaical has become a mainstream topicin judiciary realm, which triggers fierce discussions between academic and professional injudiciary area. Although the concept of Activism Judicial overlaps with Judicial Activismwhich is originated from western society in a certain degree, the fundamental content andcore values differs radically. From the perception of the use of the words, ActivismJudicial and Judicial Activism possess the characteristic of “family resemblance”according to analytic philosophy, which is only share the similarities from the appearancebut totally different in essence. As the legal environment and constitutional system inChina is different from that in western society, therefore the concept of Activism Judicialin China distinguishes the concept of Judicial Activism in western society from the historicbackground, applicable scope and methods and fundamental characteristics, presenting itsunique context and realistic basis.In China, Activism Judicial requires the judiciary creatively and flexibly applies thelaw to resolve social disputes based on a comprehensive consideration of various socialfactors of political, economic and cultural., promoting reform and development in social,economic, political and cultural field, eventually realizing the value of law. The reasonswhy Activism Judicial could exist in China and received valued and respected meanwhileare it not only reflects and maintains the law values such as order, efficiency, justice,human rights but also it plays significant role in achieving the unification in legal effectsand social effects, moudling judicial authority, accumulating the experience of legislativeand judicial reformation and alleviating social conflicts. But, judiciary possesses thecharacteristics of passive and neutral, therefore Activism Judicial should be applied in aprudential and modest way., practicing it under certain rule and frames.This paper aims to reveal the theoretical basis of Activism Judicial, exploring itspractical approach. In order to better address the issue, this paper is divied into three parts.The first part mainly introduces the generalization theory of Activism Judicial.,summarizing the fundamental content, property and basic characteristics of ActivismJudicial. Also, the first part compares the the concept of Activism Judicial in China withthe concept of Judicial Activism in western societies and systemically discusses the basicissues of Activism Judicial in China. The second part starts from discussing the values oflaw, revealing the value pursuing of Activism Judicial, adequately stating that ActivismJudicial does not subvert the value of traditional judiciary but deepen the value pursuit oftraditional judicial concept. The third part discusses the significance of the rules of Activism Judicial. With the prevailing of Activism Judicial, it brings about thephenomenon of excessive judicial meanwhile, which causes harmonization to the wholesociety and judiciary field also. Therefore appropriate measures should be take to tacklewith such problems. The forth part mainly discusses the confine of Activism Judicial. Bystarting from the judicial restricted principle, the forth part combines the basic situation ofChina and tries to find a reasonable boundary of Activism Judicial. Therefore, byregulating the main body and content of Activism Judicial, it would prevent the abuse ofjudicial power. All in all the concept of Activism Judiciary would better sever theconstruction of socialism legislation.