On The Function Of Making Public Policy By Court In China

Accompanying with the rise of judicial activism, judge’s discretion has beencontinually highlighted. The judge fills loopholes of law in which there are no expressprovisions in the law, or sets up precedence or creatively interprets the law which isnot expressly provided or its provisions are conflict with others, as well as the old lawfalls behind the social reality, according to the social justice, the equitable idea, legalprinciples. These judgments are often beyond the scope of certain specific case,bringing about a ripple effect to the route and the method of the solution of disputeswhich is involved with the social problems, affecting the related policy’s formulationand implementation. Since the permission of the existence of judge’s discretion inmodern society, naturally, the function in aspects of court’s public policy may not beexcluded.In fact, through the investigation, we can also find that, the court’s function isprone to be differently emphasized in different historical periods. There is a long timefrom the emergence of judicial power to the formation of modern judicial power, thecourt has played the fundamental function of social disputes’ resolution; until themodern court gradually acquired independent status, and the court has been no longersatisfied with its basic function. The outstanding performance is that the court is toobtain more and more judicial discretion, and the extensible function of the court’sjudicial power gradually shows. Therefore, afresh recognizing and locating thefunction of modern court is imperative.Basing on the above consideration, this paper focuses on the discussion of publicpolicy making function of court. The first part is to give a general definition to thefunction of modern court, especially, the extensible function of modern court’s publicpolicy making function are discussed in detail; The second part is an academic inquiryof the court’s policy making function, in order to gain a further understanding; Thethird part is the analysis of the realistic background of our Chinese court’s publicpolicy formation, from the prospective of four aspects which include the socialtransformation and change, the rise of modern lawsuit, the lag of legislation and courtrole transformation, analyzing the actual reason of why the public policy makingfunction what current Chinese courts must exert; And then the fourth part analyzes thepresent condition and existing problems of the public policy forming function what the court plays in China; Finally the transformation of modern society in China isregarded in the last part, considering the current circumstance of the exertion of thecourt’s public policy formation, and putting forward an ideal route in which the publicpolicy making function in Chinese courts is constructed.