当代中国的能动司法论析

On the Active Judiciary in China

能动司法在时下中国的司法实务界已经如火如荼地展开,而法学理论界对于能动司法的蕴涵却展露出莫衷一是的极大争议。从一开始,我国法学理论界和法律实务界对能动司法的界定就遗憾地依凭着殊异的理路与立据,从而造生出法学理论界的能动司法与法律实务界的能动司法的争论与对立,二者对于能动司法的讨论并非在同一个意义上展开。对此,唯有通过对能动司法的实质、主体、内容与方式做一番辨异方可厘清。

Nowadays,the judicial practice of active judiciary has been carried forward rapidly,however,the jurist hold very different viewpoint on the connotation of active judiciary and have no consensus about its contents,there is a distinct connection and basis between the academic community and the judicial practice community on the issue of active judiciary since the beginning,which makes the arguments and opposition between them too.The discussion among them is not on the same context.Some clarification on the essence,subject,content and method should be made so that we can solve this problem.