Restraint Of Judicial Activism

As a kind of judicial philosophy, judicial activism in the origin of American ju-dicial review system, and originated from a liberal constitutional tradition, in order to promote the process of law and the development of justice. Around this goal, th e connotation of judicial activism become new and modern.Judicial activism and j udicial restraint are always fighting with each other, and the judicial practice devel opment of our country has experienced from active to restraint and then return to t he judicial activism with reasonable control. In this process, the judicial activism i n China proposed by the Supreme Court, it is a special form of judicial activism under the background of our social. It’s different from judicial activism in many aspects,just like the form of background, philosophical basis and practice mode. B ut in the operation of the goal, value orientation and other aspects,they have some thing in common. This paper aims to a comprehensive study of the two legal syst ems in the context of judicial activism, combined with China’s actual conditions, to advocate a restraint of judicial activism.First of all, I research the origins of judicial activism, carding the development process of judicial activism in the context of western countries, and sums up it’s modern connotation. This work is defined to find the model to the concept of judicial activism in China. At the same time, through the comparison of judicial activism and judicial restraint,points out that the relationship between the two words is not absolute opposition,they are mutual penetration and influence. According to the connotation of modern judicial activism and the judicial practice of Germany and France, I try to explore the practice of judicial activism in the content and process of the two countries, then summarize the implementation of judicial activism in China and advocate it’s legitimacy. But at the same time,we must stay alert to the inherent risks of judicial activism.However, the judicial activism in China put forward by Supreme Court is not absolutely as same as judicial activism in the west. Since the establishment of the new China, activism and restraint are always fighting with each other in the judicial practice, and the judicial activism in china is a profound sense of judicial activism reform. Compared with the western judicial activism,I’d like to give a detailed description of the judicial activism in china for three aspects :they are the content, the typical practice style and the characteristics.As our country is in the process of social transformation, the judicial activities are facing many challenges, combined with the practical background of our country, the implementation of judicial activism in China is necessary.But the foundation of legal system in China is weak, if we implement judicial activism, it can do harm to our judicial system.Therefore we should calls for the restraint of judicial activism.