Study On The Judicial Power

The author first examines the sources of judicial power from the historical materials, and concludes that judicial power refers to the power which courts and judges own to decide cases and controversies according to law .He also points out that judicial power should not be separated from the theory of separation of powers. Then he discovers that the concept of judicial power should be studied from the view of development. There are two types of judicial power: traditional judicial power and modern judicial power. Accordingly there are two theories of judicial power: judicial self-restraint and judicial activism.Second, the author studies the traditional judicial power that is the characteristics of continental legal system, he also discovers the philosophical foundation of traditional judicial power: Rationalism.Third, the author analyzes the modern judicial power that is characteristics of Case law system. He concludes the tradition of Common Law and Equity is the sources of modern judicial power. He also discovers the philosophical foundation of judicial power.Fourth, the author tells us the expansion of judicial power in countries of Continental Legal system. From three aspects, the power of judicial review, judicial legislation, and legal interpretation, he points out it is the trend of modern judicial power in Continental countries by learning from modern judicial power in Case Law System countries.Finally, the author concludes that our country faces two historical changes in judicial power. The first is. to exclude the non-judicial organ from the real one. The second is to expand the real judicial power, that is, to turn to judicial activism from three aspects: judicial review, judicial legislation and judicial interpretation.