Abstract with the forward development of the society, the legal system is constantly improving, the current Judicial Activism theoretical consensus has not yet formed, but it has gradually become the courts at all levels to pursue judicial philosophy. The difficulty in enforcement is widely recognized that the implementation of the Court, and how to use the Judicial Activism crack the implementation of difficult, the practice has long been a variety of exploration. Judicial Activism overview, and then analyze why our courts during the execution of the implementation of the Judicial Activism and Judicial Court during the execution of the embodiment of the use, analyzed and discussed the implementation of the Court of Judicial Activism.
Paper Keywords implementation of the Court Judicial
Active judicial Overview
(A) the meaning of Judicial Activism
Judicial Activism attention both domestic scholars as early as in the beginning of this century, but established as China's judicial philosophy, not a long time, in 2009, president of the Supreme People's Court Wang Shengjun requirements 'adhere to the Judicial Activism efforts made in promoting the three priorities new achievements, bringing Judicial formally proposed in judicial practice, the basic requirement is to play a judicial initiative, pro-active service for the party and state work for stable and rapid economic development, maintain social harmony and stability. To be able to more accurately understand the dynamic of Justice, we must first grasp the Judicial Activism and passive relationship.
Judicial passivity has been regarded as one of the essential attributes of judicial jurisdiction since the launch of the beginning of the course of the campaign can only be based on the application of the parties, referee, judge, referee process to maintain passivity, negativity, it requires: detached and judiciary to try to make themselves at all to submit the the referee controversy and has nothing to do with the applicable laws Affairs, but not actively involved in the intervention or participation in these disputes and affairs. Practice has repeatedly proved that did not strictly follow the judicial passivity, there is no judicial neutrality. However the Judicial Activism play is the inevitable development of the rule of law, moderately active justice is more conducive to the realization of substantial justice. Judge to 'dead' provisions of the law applicable to real-life social life, it is necessary to give full play to the initiative and really understand the spiritual essence of the law, identify the point of consistency and Justification, law and intelligence point of integration, law and social life fusion point. Justice initiative is the use of judicial entities, the judge for the case handling process give certain privileges to enable them to maximize the social justice. Therefore, the judicial passive focus on justice on the judicial process, to prevent abuse of judicial power by judges, judicial initiative is more focused on substantive justice, and earnestly safeguard the interests of the parties. It can be said that the Judicial Activism and Judicial passive coexistence and unified throughout the course of the proceedings, will promote the economic and social development and the rule of law in the process of civilization.
Second, our implementation of the dynamic execution reason
At present, China is in the pace of social transformation and contradictions of a rapidly changing social development, with a lag and limitations of the enactment of law, can not be followed by the development of the times, in particular the implementation of the Court in an open environment, which requires The judge in the implementation process due to the time, give full play to the initiative, so that dynamic execution. China why do we need dynamic execution summed up the following points:
The right to perform not only has the initiative. Civil executive power as a form of state power, how to define it, academia has been controversial, there are three main perspectives: First, the jurisdiction. That the civilian implementation of the behavior is to be implemented by the national judiciary enforcement action, the civilian implementation of the right to jurisdiction. Said the executive power. To say that the the civil execution behavior is not in order to resolve the dispute between the parties, but in order to make the entry into force shall determine the content can be achieved, in order to maintain the authority of the administration of justice. The right to perform proactive, non-judgmental, the pursuit of timely, effective, continuous. Neutrality, passivity, the referee is characterized jurisdiction fundamental difference, the executive power is executive power. Compromise. That the executive power has both the properties of the executive power, but also has the property of jurisdiction. The reason is included in the civilian implementation of the behavior of the two properties - execution behavior and implementation of relief behavior. The former is taken by the executive organ seizure, seizure, freezing, detention enforcement measures, has the initiative, the non-neutrality, equality and other administrative nature of the right. The latter refers to the controversy of the program execution, such as the implementation of the review of the objection, the same passive nature of neutrality, equality and other jurisdictions. That execution behavior attributes of the executive power, the implementation of relief the behavior has jurisdiction property.
I in favor of the third view, a compromise that theory correctly distinguish the different nature of the execution behavior and the behavior of the implementation of relief, set in the institutional better optimization judicial and executive powers, judicial functions by the judicial institutions to implement, execute The functions implemented by the executing agency. From a practical point of view, during the execution of the property of the person against whom the investigation, served on the relevant legal instruments and instruction to assist in the implementation of the unit to assist in the implementation, announcement, urge the debtor to fulfill their obligations, and so on, these work embodied in the terms of reference is not a judicial the right, but the executive power. ' Implementing agencies abroad to set up and practice support this view, in accordance with the provisions of the procedural law of the implementation of the Russian Federation ', the Judicial Police of the Russian Federation and the Russian Federation constituent entities of the Bureau of Justice, the judicial police responsible for enforcing decisions of the Court and other authorities of the Russian Federation the ruling of the judicial police is owned by the Russian Federation Ministry of Justice sequence. The implementation of the United States by the local or federal marshals to complete. Federal Ministry of Justice equipped with the federal executive government offices, the top leadership of the federal executive government offices as executive director of judges, based on the views of the Senate appointed by the President. The local executives elected by the public. Visible, the executive power is also the executive power.
In summary, for the civil enforcement program execution behavior, you can identify the properties of the executive power, should have the initiative.
Dynamic execution is an inherent requirement of justice for the people '. China's Court is the people's court, 'justice for the people' is the purpose of the Court's work. This determines the People's Court in the implementation process, we must effectively to maintain the interests of the people, to protect their vital interests. The rule of law in our country was just a few decades, relative to foreign hundreds of years of development history, still in its infancy, the people's legal awareness and legal literacy is far from true formation. Many of the parties shall not know how effective realization of the rights shall determine the application for enforcement and court enforcement measures do not understand, omissions enforcee, forgotten application execution time, leading to inefficient implementation. Particular about judicial passivity, while ignoring the initiative of the administration of justice, the rule of law in the current context, is bound to make the lack of timely and effective protection of the legitimate rights and interests of the parties. Therefore, China's judicial organs in the implementation of the program does not have a transcendent neutral passive position, the implementation of enforcement measures, the implementation of the program up and running, push, correction, and so natural with the terms of intervention, proactive colors.
Dynamic implementation contribute to crack the difficulty in enforcement. Difficulty in enforcement is its ability to perform the parties, the circumstances are not carried out due to various reasons, the so-called 'difficulty in enforcement' main 'difficult', to be executed as property hard to find, difficult to implement property, executor hard to find, to assist in the execution of duties is hard to find. Despite the implementation of the reasons for the difficulty caused by complicated, and even the fundamental reason is that external factors such as imperfect credit system, but the community to pay more attention to the people's court attitude and as. The current through the active implementation to improve the implementation of the system, increase enforcement, regarded as one of the effective ways to crack 'Difficult to Enforce. Dynamic execution of the request to the court to investigate proactive property clue will help alleviate the problem of the implementation of the property hard to find. In practice, it was according to the Civil Procedure Law 'who advocate who proof' principle, require the applicant to provide property available for execution clues, 'intellectually, may be by the Trial Reform will strengthen the experience of the parties to the burden of proof ported to perform the work, but also may be a reflection of the trends in the field of implementation mode of action by the authority principle to move closer to the Confrontation As mentioned earlier, the right to perform certain administrative rights property, the implementing agency should be proactive implementation of the execution behavior property, rather than passively waiting for the applicant to report clues. If the person refuses to perform on its ability to perform the same time, take in the media, debtor information in the entry on the credit system, restricted from departing until investigated for his criminal responsibility and other measures. The obligation to provide assistance units and their main person in charge, the court should take the initiative to inform the Commission for Discipline Inspection and supervision departments, the circumstances are serious measures to take detention or a fine. These measures are to some extent able to resolve the implementation of the difficult situation.
China's active implementation of the People's Court Judicial Activism concept as a guide, give full play to the initiative and actively exercise their functions and powers, take the initiative to consider the execution of the request, take the initiative to promote the implementation process, fast cash debt, to resolve conflicts, to achieve the case of knot things. It should be covered 'trial of systems engineering in the implementation of the whole process.Reposted elsewhere in the Research Papers Download http://eng.hi138.com
3 of vulnerable groups to strengthen the work of justice. Encountered during the execution of the executed really no property to be performed in order to reflect the purpose of the implementation of justice for the people, combined with the implementation of the practical needs, the establishment of the performance of rescue special fund due to traffic accidents, personal injury, criminal with civil and family age support, help, raising money to benefit cases cause life difficult for vulnerable groups of timely and accurate justice, can effectively alleviate the trouble due to the implementation of the applicant's life can not be leaving, and promote social harmony and orderly development.
Fourth, the active implementation of the system improvement
(A) actively promote the active implementation of the legislative work, the dynamic implementation of laws to go
For the positive results achieved in the active implementation of the process of exploration, it is necessary by way of legislation to be consolidated, and to promote them to form the active implementation of the legal system with Chinese characteristics. Active during the execution of the fundamental encountered difficult problems of universality, should establish a unified value orientation, the introduction of appropriate judicial interpretation. Such as the principle of dynamic execution, take the initiative to start the implementation of the program, take the initiative to promote the implementation of the program and other aspects of the legislation. Strengthen the the active implementing legislation, can effectively prevent all over the court in the specific implementation process in their own way or the random case, the dynamic execution according to the law, in order to maximize its role.
As mentioned earlier, the Court Judicial Activism in the implementation process has been carried out some useful exploration, and achieved certain results. But we must not over-reliance on and exaggerate the initiative of the administration of justice, try to deny justice as an essential attribute of justice passive. Otherwise, the so-called judicial activism will only be reduced to the rashness and tamper with, not conducive to the country's construction of the rule of law. Judicial should as a basis for a judicial passive, you must strictly follow the law of justice, can not go beyond the statutory authority and responsibilities, can not be separated from the norms of the Constitution and the law. Court should be moderate to play in the implementation process of Judicial Activism to promote effective rulings of the case, to effectively protect the legitimate rights and interests of the masses of the people, and actively serve the overall interests, in order to maintain social harmony and stability for the people's justice.Reposted elsewhere in the Research Papers Download http://eng.hi138.com