正名“能动司法”——兼谈“能动检察”之本体价值
发布时间：2018-07-29 09:37
【摘要】：根源于西方实用主义的司法能动主义并非我国能动司法的源头,前者通过法官的创造性影响国家公共决策,后者更多体现为一种理念,强调法院整体适应社会变革所作出的司法调整。能动司法与司法消极性不相冲突,司法消极性更多体现为相对意义的消极,并不因此否定司法的能动作用。能动司法的政治性并不导致政治优先与法律至上对立,但能动司法必然有所限度,不能突破现有法律权限和范围。能动检察在法理上并不存在,检察权的法律监督属性决定了检察权本身是积极主动的。
[Abstract]:Judicial activism, rooted in western pragmatism, is not the source of active justice in China. The former influences national public decisions through the creativity of judges, while the latter reflects more as an idea. Emphasis on the court as a whole to adapt to the social changes made by the judicial adjustment. There is no conflict between active judicature and judicial negativity, and judicial negativity is more negative in relative meaning, so it does not negate the active role of judicature. The political nature of the active judicature does not lead to the opposition between the political priority and the supremacy of the law, but the active judicature is bound to be limited and cannot break through the existing legal authority and scope. The active procuratorial power does not exist in the legal principle, the legal supervision attribute of the procuratorial power determines that the procuratorial power itself is active.
【作者单位】： 桂林广播电视大学;
【分类号】：D926.3
，
本文编号：2152266
[Abstract]:Judicial activism, rooted in western pragmatism, is not the source of active justice in China. The former influences national public decisions through the creativity of judges, while the latter reflects more as an idea. Emphasis on the court as a whole to adapt to the social changes made by the judicial adjustment. There is no conflict between active judicature and judicial negativity, and judicial negativity is more negative in relative meaning, so it does not negate the active role of judicature. The political nature of the active judicature does not lead to the opposition between the political priority and the supremacy of the law, but the active judicature is bound to be limited and cannot break through the existing legal authority and scope. The active procuratorial power does not exist in the legal principle, the legal supervision attribute of the procuratorial power determines that the procuratorial power itself is active.
【作者单位】： 桂林广播电视大学;
【分类号】：D926.3
，
本文编号：2152266
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