The Court Of Public Policy Development Of Functional Analysis

Through historical study of Court's function, it can be found that the function of court has different emphasis in different historical period. From the beginning to the forming of judicial power, courts mainly played the basic function as a solution to social dispute. After courts gained its independent status, it gradually has more and more judicial discretion and its expending function appears.Modern society allows judicial discretion. Naturally it will be impossible to exclude the courts from the policy making. Judges fill in the legal loopholes when no law expressly provided or create judicial interpretation and judicial review according to the social justice, equity concepts and principles of law when the law is unclear or in conflict or behind the social reality. This ruling is beyond the scope of a specific case. It will greatly influences the field of policy formulation and implementation.Judicial policy is not only a solution of a dispute. It will also have a great impact on social issues government is facing. With the rising of judicial activism, courts have increasingly become a public policy maker and implementing institutions. Therefore it badly need a overall study of court's function in contemporary society.Based on the considerations above, this paper will focus on the policy making function of court. It will firstly discuss the jurisprudential analysis of court's function and policy-making function; then comparatively analyze the similarities and differences of court's function in civil law system and common law system; and finally study the path to construct the policy-making function of our Chinese court.