On The Judge's Activism In The Civil Litigation

Should civil judges uphold the spirit of equity and justice,settling the disputes through judicial techniques and thereby develop law and push the society forward or should they live up to the principle of being passive and the existing rules in deciding the cases,strictly obeying the logic of syllogism so as to keep integrity in decisions.This has long been a problem for the judges as well as a difficult theoretical question which calls for thoughts in scholars and the public.As a doctor degree student who has long worked in the practice as a judge as well as is keen on the theoretical research,I am trying to put forward the notion of civil judges' activism and elaborate it so as to address the above-mentioned problems.The paper hereby try to give its reasonable explanation of this and his advice on systematical device in order to overcome limitations of syllogism and correct the mistakes of conceptual legal education in that the code is al-mighty and can solve any problem.The paper includes five parts together with the introduction and the conclusion.For the introduction,the paper put forward the problem and point out that the subject studied hereof is significant in deficiency of our civil adjudication and push forward the reforms in civil adjudications and therefore perfect the unified mechanism and amplify and develop the significance of theoretical study hereof.Chapter 1 is based on the books of the scholars at home and abroad,defining clearly the meaning,nature,properties and historical development of the judges' discretionary activism. The paper believes that the concept of discretional power itself is imprecise and has many meanings and the concept defined by our scholars is incapable of solving the problem of the ambiguity of the legal rules,conflict thereof,absence of the correspondent rules and obvious inequity therein.Meanwhile,judicial activism originating from America stresses more on the judges' ability in legislation,judicial review and following the precedent which is not identical with our status quo at home.Hereby,the paper introduced the terms 'initiative and activism of judges in civil cases',namely,the judges' power of freedom of assurance when ascertaining the fact,managing of the procedure and explaining the law,discretion in decision and freedom in choice and their ability in choosing proper procedures and laws and ability in making up for law deficiency for the problems of equivocal rules,conflicting provisions, absence of relevant laws as well as obviously unfair circumstances and therefore their ability of reasonable explanation,balance,choice of legal rules and power in making up of loopholes. Judges' judicial initiatives and activism in civil cases has properties of adjudication,which belongs merely to the judges in deciding the cases and it is professional methods,objects, techniques,practice and as well as professional ethics and reasoning,which is limited initiatives and designed to realize social justice and faimess,which includes mainly the judges' power of free assurance in ascertaining the fact,managing of the procedures and the application of the law which contains power of explanation of laws in the judges and decisions in accordance with the circumstances,discretional power of choice and balance and that of supplementing the loopholes.On the long process of changing,theory of judges' activism has shown three forms of non-activism,absolute initiative and relative mobility,of which the main ideology is to attain the balance between stability of the statutes and varying social practices,general justice and unique one and provision and freedom.Despite differences in history,culture,the judges' initiative and activism has been identical choice of the two legal systems only for the extent and range.With the intermingling of the two systems,a trend of combination of legal regulations and judges' activism under the macro-freme has come into being.Chapter 2 mainly comments on the philosophy and jurisprudence of judges' discretionary abilities on the basis of analysis of argument concerning the judges' initiatives.The author believes that the judges' activism emphasizes the utility of civil adjudication towards the social development,which is designed to safeguard the equity of the parties solving the existing problems.This is the choice of judges with reasoning.Therefore respect and justifiably consider the experience of judges far outweighs simple logic in settling the social disputes and solving the real problems.Civil judges' activism differs much from the theory of adjudication as a tool in that civil adjudication solves problems according to its own rules and handles the social contradictions in a limited range;perform social control and the execution of policies and other derivative function.Although weaker and narrower compared to legislation and administration,it doesn't necessarily mean the slackness and passivity of the judges' power.Civil judges' activism has a profound foundation of philosophy,and absolutely and relatively dialectical relationship has called for progressing of civil judges in overcoming restriction of times and legislation;generally and individually dialectical relationship has called for objective choice and judging power thereof,therefore balancing between general and individual justice;mutual relations between subjective and objective calls for balances between rigid rules and initiative adjudication and thereby come to more reasonable knowledge and judgment concerning individual cases;logic and experience call for the combination of two by the judges.Civil adjudication is a social activity led by judges which shouldn't be as precise as scientific apparatus.Considering limitation of statutes and judges' ethics thereby with the goal of showing existence of civil procedures as well as purpose of civil procedures,the judges are usually under the guidance of legal provisions in realizing the purpose of civil procedures.However,judges' activism is a two-edged weapon,which is easily subject to the judges' abusing of it in pursuing the judicial justice.In order to safeguard the justifiable application of the judges' activism,the principles of legitimacy,reasoning, credit,public order and moral and that of equity and interest balance should be conformed to.Chapter 3 begins with supporting system of mobility and activities in judges,regulates reasonable discretion from three layers i.e.legislation,procedure and subject and thus promotes and pushes judicature towards justice.The paper believes that ascertaining the fact is the process of a free choice and inner assurance with the judges.Therefore,the judges' initiative is through confirming the parties" admission and judicial recognition,facts presuming,and law of experience,application of distribution of proving liability and level and reviewing of proofs and evaluation.In spite of the differences in each country in managing the procedures,judges have all displayed their mobility in controlling the process, collection of evidences,survey and inquiry as well as explanation and managing the unique procedures.Application of law is the process of judges' applying the written regulations to individual cases which calls for,under the guidance of legal regulations,methods of philosophy,evolution,tradition and society on the judges' part so as to settle the disputes, attain the goal of civil litigation especially at the time when the legal regulations are ambiguous,contradictory,absent and obviously unfair.This displays the judges' initiative, reallocate the interest and realize social equity and justiceChapter 4 is mainly on justifying the activities in judges through examining the corresponding two legal systems,defining the origin and approach of limitations of judges' activities so as to ensure its proper function.The paper,through the angle of society,believes that,as a profession,the judges' self-acknowledgement of social identity,religion and political belief and salaries greatly impact their professional initiatives in deciding the cases, and their hobbies and their emotional preference and tendency and other factors also influence their mobility.While showing their social characteristics,they have their natural weakness in human beings which more or less affect their act in the court when applying activism.Hereby, the paper concludes that owning to many factors like bad social customs,social contradictions of particular period of history,pressure from out the court and their own interest therein,the abusing of activities and corruption arises,which is the reason of limiting the judges' activities and mobility.To ensure a good function of judges' activism,we should,in accordance with the property and regularity of civil procedural law,regulate it through legislation,proceedings,subject,judicial rules and institution,and communicative dialogue of the parties.Chapter 5 is based on our status quo in judges' activities and probes into our practices and therefore comes to regulatory methods.The paper sees that to strictly obey the statutes and adjudication has become the mainstream of our legal environment.In practice,judges' activism does exist and can't be avoided,however there're too many restrictions on it and the judges have inevitably become 'the dancer on the blade'.Therefore,the effect of judges' activism has been limited for being in the dilemma.Non-perfect law,rough researching methodology,rigid provisions,slow judicial reform and chaotic judges' mobility have all been the status quo of the judges' activism.Admittedly,we are now in the environment of establishing judges' activism and mobility,for our ideology of procedural law weighs now as much as substantial law,judges' group construction has been progressing,people's jury has functioned well,guidance of cases have gradually been regulated,conciliation has been continuously perfected together with demand of balanced individual and general justice and the practices of development in judicial decision have made it possible to regulate the judges' activism.Hence,we should,when regulate the judges' activism,establish the notion of maintaining the judicial justice,perfect civil adjudications,strengthen the judicial interpretation,intensify control of the judges' decision,safeguard and implement justified application and establish a good social legal environment.In order to ensure the science and effectiveness,the paper concentrates on the dialectical historical materialism and its common use in the linguistic context,regulatory and practical study combined with study of legal theory and law divisions and keep the research vision broadened and research method comprehensive,probing into the judges' activism and relevant problems with examining judicial practices,trying to justify its theory and work out the systems and its operations,expecting the breakthroughs in the civil judicial practices.