A Study Of Judicial Activism In China

In the past two years, the most heated topic in judicial field is "Activism". However, in the Chinese language context, judicial activism pays too much attention to its political function, ignoring the legal content of itself. Obviously, it is the product of power ambiguity, incapable of constraining the power effectively, only with the social pacifying and political function, which belongs to lash-up judicial strategy, but not an institutional choice of reason after strict legal demonstration. To clarify the source, position of judicial activism and its relationship with China’s law ruling career is of vital importance for setting up a standard. This thesis has analyzed the development and change of judicial activism in western countries based on the fundamental theory of judicial activism. And the present thesis has also clarified the existing judicial activism activities on the basis of researching the very core of this theory, telling the way in which China’s judicial activism may go by analyzing the constitutional texts and the theory on constitutionalism.The first chapter mainly deals with the jurisprudence of judicial activism, illustrating the source and conversion of judicial activism, and clarifying its original meaning as well as formation. And the first chapter also questioned the essence and philosophy of law of judicial activism, introducing the ambivalence towards judicial activism of the western countries by analyzing the paradox between the judicial activism and constitutionalism.The second chapter has concluded the judicial activism in the US, UK, Germany and France, making an systematic introduction of the developmental process of judicial activism in western countries, and has analyzed and demonstrated the relationship between constitutional culture, power institution and judicial activism.The third chapter mainly involves the experiment of judicial activism in China. It has explained the background and assertion of judicial activism in the Chinese language context. And it has concluded the unique and also common characters by combing the existing phenomenon of judicial activism. Consequently, the chapter has introduced the difference between China and the west on the issue of judicial activism and also the disputes in domestic nation.The fourth chapter has judged the China’s judicial activism by combining the real condition of contemporary China, Constitutional and legal texts, Constitutional theory. It has demonstrated the validity of judicial activism from the angle of the relationship between judicial activism and socialist judicial power, between constitutional power institution and political structure. At the same time, it has put forward the negative effect that judicial activism may bring about, such as obstacles to the law ruling relationship between the central government and the provinces and the infringement of legislative power and so fourth.The fifth chapter is on the anticipation of judicial activism. Firstly, it has analyzed the conditions under which China’s judicial activism can be carried out successfully and also the obstacles from the institutional level. Then, the chapter has concluded the reformation of China’s judicial activism, making a judgment of the prospect of judicial activism from its nature and the requirement coming from constitutionalism. Lastly, the chapter has made deep reflection of the way China’s judicial activism may step on.