寻求一种温和的司法能动主义——论疑难案件中法官的司法哲学

Pursuing Moderate Judicial Activism——On judicial philosophy of judges in hard case

在面对疑难案件时,法官的司法哲学是案件的最终裁决者。信奉司法能动主义的法官倾向于通过创造性司法来回应社会需求,而司法消极主义则将自己定位为立法者的代理人,反对通过司法途径来解决重大社会问题。在当下的中国法治建设中,基于社会转型的现实,法官在审理疑难案件时应当秉持一种温和的能动主义的司法理念,通过创造性司法来回应社会变迁,实现社会正义。

When judges face hard cases, their judicial philosophy will influence the verdict essentially. A judge who insists in judicial activism tends to fulfill social demand. However, the judge that persists in judicial self-restraint often regards himself as deputy of legislators. They refuse to solve the important social problems in judicial process. As far as legal construction of China is concerned, moderate judicial activism should be judicial philosophy of judges facing hard cases. judges should reply to social change and realize social justice by means of creative judicial activities.