淺議中國(guó)民事訴訟中的司法能動(dòng)性理念.pdf

1、華中科技大學(xué)碩士學(xué)位論文淺議中國(guó)民事訴訟中的司法能動(dòng)性理念姓名：馮志敏申請(qǐng)學(xué)位級(jí)別：碩士專業(yè)：法律碩士指導(dǎo)教師：齊海濱2011-05-21II華 中 科 技 大 學(xué) 碩 士 學(xué) 位 論 文 Abstract In the field of civil procedural, the dispute between judicial restraint and judicial activism is a l

2、ong affair. The former, aims to realize the stability and authority embodied in the law; the latter, aims to ensure the economy and efficiency embodied in the law. Present day, it will cause

3、 the party overactive or the court overactive if we purely use judicial restraint or judicial activism. And these two ways have no beneficial effect to solve some difficult problems such as

4、Litigation explosion, Litigation delay, Litigation raid, Litigation fraud, and the abuse of the right to sue. However, the harmonious blend of these two judicial philosophies has been a consensu

5、s between British- American legal system and the continental legal system. In British- American legal system, judicial activism has been a doctrine school as milestone for a long time. It lays s

6、tress on weaking precedent in the law .And in the continental legal system, the idea of judicial activism goes back to time immemorial. It emphasizes that court and judge should give full pl

7、ay to initiative ability, service ability and efficiency ability in the litigation process of civil case. Only in this way, can the issue be solved completely and efficiently. In China, the i

8、dea of judicial activism was put forward by the Supreme People's Court in August, 2009. This paper consists of 5 parts, and in the following the situation of study about judicial activism,

9、the concept of judicial activism, the content of judicial activism, the necessity and feasibility of judicial activism, and suggestion to perfect it will be analyzed successively. In the first p

10、art,the situation of study about judicial activism.In the second part, comparing the Judicial Activism with the principle of activism is the chief content. The conception and characteristics of

11、Judicial Activism are considered as the chief unit of analysis to construct the connotation appearance of Judicial Activism.And the history of Judicial Activism is analyzed. In the third part,

12、the content of judicial activism is stated. In the fourth part, the necessity and feasibility of judicial activism.In the fifth part,some suggestions enriching and perfecting Judicial Activism in