The Power Of The Judge

This article is on the power of the judge. Judicial reform has been an important segment in building the rule of law in China. More and more people in the dispute settlement process give attentions and focus on the judicial system. The construction of the power of the judge has always been concerned in the society with the rule of law. The article is based on obey and create the law, analyzes the basic theory of the power of the judge. And it discusses a series of important subjects of the exercise of power by the judge in judicial practice in Chinese context. The subjects have theoretical and practical significance.The article consists of five chapters.Chapter 1: The Concept of the Power of the JudgeIn chapter 1, it analyzes the basic problems of judges power and discusses the links and distinctions between power, judicial power and the power of the judge. It further analyzes the essence of the power of the judge. In common sense, the power of the judge is embodied with four features: judgment, impartiality, passiveness and finality. But from another perspective, obey and create the rule of law is another hand of essence of the power of the judge. In aspect of obedience to the rule of law, the law should be at least as the follow objects in the exercise of the power of the judge. Derivation in accordance with the law is the most basic legal scene of the application of law, and obey the law embodies the characteristics of judicial power of thinking. In aspect of creating the rule of law, due to the internal contradictions of the legal principles system and the problems of the rule of law, judges must create the rule of law. It discusses the significance of the analysis from the view of obey and create the law, and the links and distinctions between them. Finally, it compares and analyzes the power of the judge with other types of power, such as administrative power, prosecutorial power and police power.Chapter 2: the Power of the Judge and Bound by RulesBy analyzing the causes for the production of judicial system, the author points the special links between the legal rules and the power of the judge. It points that, justice, freedom and order are the implied purposes of the power of the judge abide by legal rules. It discusses in normative sense how judges obey the legal rules. First of all, we should limit the context of the discussion which is the effective premise of argument. When we analyze how the judges obey the rule of law, the rule of law being discussed or legal system itself can not be unjust or non-legitimate. And judges and the public can not have controversy about substantial justice of the rule of law or legal system. Then, it analyzes the purpose of the power of the judge abide by legal rules, and it raises two pre-set standards in normative sense: neutrality and procedural rules in the exercise of power. But this is not the whole problem. There always have three contradictions in the process of judges obey the legal rules. So we still need the other criteria to analyze how the power of the judge obeys the legal rules. And the analysis based on a film case. In addition, it also analyzes how judges obey the legal rules in an empirical study in judicial practice in Chinese context. Through a case, the author reveals the personal reason of judges and the phenomenon of formal and informal systems play game. It points that, in China's judicial practice, the existence of an informal institution led to the judges may not make decisions in accordance with the legal rules. And all of these are the results of game for formal system and informal system.Chapter 3: the Power of the Judge and Create RulesIn this chapter, firstly, it analyzes the rationality of creative activity of the power of the judge in application of law. The author points that, the inherent characteristics of the application of legal norms led to judge's creative activity in the exercise of power. But the creativity is not without borders, it has the internal factors, include substantial and procedural norms and legal principles. Judge creative activities in the law mainly through judicial interpretation to achieve. There are several approaches to interpretation of law. There also some judge creative activities exist outside of the law in judicial practice, that is, the higher instructions, moral standards and the public will. They are all influencing factors when judge make interpretation creative in application of law. But sometimes the judges will rationalize the decision to cover up the influence. It should be emphasized the need to rationalize the decision, at the same time, it should also be vigilant against its limited nature. Only relies on the detailed justification in the decision, may not be able to achieve the purpose of justice. The author illustrates this point through a case.Chapter 4: the Power of the Judge and Due Process of LawThis chapter discusses the relationship between judge powers and due process of law. Due process of law plays a role in three aspects. Firstly, it mediates in opposing concept of justice between parties, let the parties agree with the factors of personal subjective judgment of judges power activities. Secondly, it is the evidence as res judicata of the power of the judge. Thirdly, it creates public credit of the power of the judge. As the first aspect, procedure, to a certain extent, is to solve the conflict between the parties arising from the concept of fairness. There are corresponding criteria on the legitimate nature of the process. Due process of law plays an important role in solving the conflict between the opposing concepts of fairness in the area of justice. It also analyzes the relationship between characteristic of res judicata of the power of the judge and due process of law. Due process of law proves the legitimate nature of res judicata of judges power and explains it properly. In addition, the public credit requirements of judge's power and due process of law are closely linked. It discusses the relationship between the public credit requirements of judge's power and due process of law from several areas: why must have public credit and its attribute of value judgment. Finally, it analyzes the limitations of due process of law and the inherent logic of the power of the judge.Chapter 5: Additional Discussion: Thinking on the Institutional Arrangements of the Power of the JudgeThis chapter thinks about the institutional arrangements of the power of the judge. Firstly, it points out that at present, in China's judicial practice, the problems encountered by the power of the judge. There is a profound contradiction between system supply and unique attributes of the power of the judge. Finally, it analyzes the existing judge system needs to be reform. The author views reformations conclude de-administration and de-localization of justice, improve judge system and reform supervision system.