민사법관의 능동성 확립과 절차이성에 관한 고찰

Abstract

With the development of social economy and new difficult cases gradually rising, it is the need of era that civil judges has discretion in construing, coordinating and selecting laws and can even fill the legal gap to resolve disputes on the circumstances of legal appears conflict, fuzzy, vacancy and unfair. Because of the limitation of legislation, absence of consensual rules and the low homogenization of professional thinking of judges, the operation of judicial activism takes on a “spontaneous” and uncertain look and that leads to a series of problems such as deferred judgement, erroneous judgment and even contradictive judgment. Therefore, it is necessary to envisage the two sides of judicial activism and give it a reasonable respect and regulation: updating the principle of judgment, pushing the legislation and focusing on the judicial situation, making the judicial activism alive between legislation and judicature; It is necessary to establish principles and standardize procedures, make the guiding cases to guarantee the procedures; It is necessary to adjust the rule of provisions, enhance the equality and justice, improve the convenient mechanism and realize the harmony, make the judicial activism can solve disputes pacifically through provisions and due procedure; It is necessary to make the design of procedure conform to the purpose of litigation, application of procedure conform to the balance of logic rules, dispute resolution and the rule of provision, and make the judicial activism get the respect in dispute resolution and procedure operation to response to the objective needs of social reality.