Research On The Path Of "Judge Making Law" Under The Background Of Ruling The Country By Law

To comprehensively promote the rule of law is an important strategic plan of the Eighteenth National Congress of the CPC and an important symbol of the new era of China's construction under the rule of law.The Fourth Plenary Session of the Eighteenth Central Committee of the Communist Party of China will further specify the grand goal of comprehensively promoting the rule of law,and establish the general goal of building a socialist legal system with Chinese characteristics and a socialist country ruled by law.In order to establish the rule of law in China and make the socialist system with Chinese characteristics more perfect,we must effectively promote the improvement of the state governance system and the modernization of the governance capacity.Justice is the judicial guarantee for the implementation of the basic strategy of ruling the country by law,which is related to the people's trust and support in ruling the country by law.Judicial justice is an important standard to measure the level of ruling the country by law.Only by realizing judicial justice can we achieve the expected effect of ruling the country by law.Different social stages have different needs for the rule of law,and the measurement standard of "rule of law" is constantly changing with the progress of the times.With the change of social relations,disputes in real life are very different and full of personality,so the law is inevitably "ill-cared".When the law lags behind or loopholes,how to achieve fair justice is a major issue for judicial workers.Judges make laws,that is,judges understand,interpret,apply and recreate existing laws on the basis of conforming to the spirit of law,which can effectively resolve the problems caused by the disjunction between law and society and make up for the law.The loopholes,through the effective handling of cases,safeguard the fairness and justice of the judiciary,and achieve fair justice.I believe that in the ever-changing social life,new social relations and legal relations are constantly emerging.Because of the defects of statute law,judges can not deal with new legal relations according to the current law."Judge-made law" is the most effective and fastest means to solve this problem.With the development of the rule of law in China,it is an inevitable trend that judges make laws.To establish and improve judges' make laws in China is just the way of the times.However,in the process of establishment and improvement,we must carefully grasp the practical problems and then solve them carefully.In a word,in the specific historical stage of our country,it is necessary for judges to make laws.However,due to many objective factors,there are still many shortcomings in making laws.We should face up to the existing problems and shortcomings and explore the positive role of making laws by judges in the construction of China under the rule of law.In this paper,the author uses the methods of literature research,case analysis and interdisciplinary research to analyze the social practical benefits of "judge-made law" in realizing the fairness and justice of law under the background of ruling the country by law from the perspective of Marxist jurisprudence,and to explore the path of "judge-made law".At the same time,I hope that through the in-depth study of the issue of "judge-made law",I will put forward some opinions that I advocate and agree with "judge-made law" and strengthen the measures and paths of "judge-made law".The research contents are divided into five parts:The first part(Chapter 1).This paper mainly introduces the research background,significance,purpose,main contents,current research situation and research methods of judge-making.The second part(Chapter 2).From the perspective of Marxist jurisprudence and the theory of governing the country by law,this paper analyses the theoretical basis of this topic,and expounds the role of judge-made law in the judicial justice and the overall promotion of governing the country by law.The third part(Chapter 3)puts forward the problems faced by the development of judge-made law in China,analyses the reasons for the formation of judge-made law,the defects of statute law and the contradiction between difficult cases in judicial practice and "adjudicating according to law",so that judges must give full play to judicial initiative in the application and application of law in order to guarantee the justice of judicial entity.The realization of this problem,and the judge's law-making is an effective way to solve this problem.The fourth part(Chapter 4)puts forward the countermeasures and suggestions for the construction and development of the judicial law path.This content is mainly to test the practical value of this topic research with specific practical problems.Starting from the national nature of socialism and the basic national conditions of our legal system in the primary stage of socialism,this paper puts forward that to develop the system of judgemaking in our country,first,we should strengthen the leadership of the Party and firmly establish the concept of judicial justice;second,we should strengthen the construction of the professional system of judges;third,we should innovate the methods of judge-making;and fourth,we should finish.Good judge-making system;Fifth,to prevent the abuse of judgemaking system.This is the focus and the end point of this topic.The fifth part(Chapter 5)concludes the whole paper.