司法的限度：在司法能动与司法克制之间
吴英姿司法的限度：在司法能动与司法克制之间
Limits of Justice: Between Judicial Activism and Judicial Restraint
期刊名称：《法学研究》
期刊年份：
作者：吴英姿
单位：南京大学法学院
中文关键词：司法限度;司法能动;司法克制;司法权威
英文关键词：judicial limits;judicial activism;judicial restraint;judicial authority
中文摘要：
我国法院从司法改革初期积极扩张司法权的一端，转变到面对社会矛盾复杂性而采取自我限缩策略的另一端，暴露出司法权运作边界模糊的问题。社会需求决定了司法的供给，但司法权的能力是有限的，其机能的发挥有赖于一定的条件，而且当事人人数的多少、案件的复杂程度等都会影响司法权的能力。司法权应当恪守自己的边界。对超越自身能力的事情保持克制，是司法权威的必要保证。
英文摘要：
The limits of justice mean the scope and boundaries of judicial power. This problem relates to the fundamentals of judicial power, such as the suability of disputes and rights, the justice activism and its limits, how to protect rights in the field of social self-organization, and how the justice impact the public policy, etc. Courts in China expanded its powers actively in the initial stage of judicial reform, but today, from one extreme to another, courts often use self-restriction strategies when they face the complexity of social contradictions. This paper tries to draw a relatively specific and clear boundary for judicial power from both theory and practice aspects.The supply of justice is determined by social needs, but the capacity of judicial power is limited, and its function depends on certain conditions. For example, justice can not handle the disputes which lack of one party. Both the number of the litigants and the complexity of the case affect the capacity of judicial power. While justice specializes in deciding the right disputes in the field of purely private interests, the limited nature of judicial function would be revealed when the dispute concerns group disputes, public interest, social self-reduction and the field of science and technology. Judicial power shall abide by its own borders. The limits of justice also remind judges that they must think just like judges rather than legislators, and use the logic of law instead of the logical of moral to demonstrate decision reasons. In the view of protecting litigious right, courts shall not refuse to judge for any reason. So the limits of justice in disputes settlement often lead to the tension between the safeguard of litigious right and the boundary of judicial power. Therefore, the system designs need to find a balance between them. The key is to set up mechanisms for identification and diversion according to the principle of judicial power operation, so that litigable disputes can access to the courts smoothly and those not suit to justice can be diverted to other agencies. To keep restraint on the matter beyond its capacity is the necessary guarantee for judicial authority.
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