A Study of Judicial Capacity in Public Interest Litigations
|Keywords||Public Interest Litigation Judicial Power Judicial Minimalism Judicial Activism|
Currently, the Civil Procedural Law of China is going through the biggest modification since its birth. The article8of the draft amendment introduces for the first time public interest litigations into formal civil procedural laws. Public interest litigations have become the focus of scholars. As to public interest litigations, our courts have been dealing with them for a long time, but due to the lack of formal legal provisions, the courts have always been acting in a negative manner towards them. Current researches on public interest litigations focus on the litigations’system design, and are in chaos. These researches have ignored a fundamental problem in constructing successful public interest litigation system:how should judicial power work in public interest litigations and what is its limitation? The thesis is a comparative law study of the limitation of judicial power in Chinese public interest litigations, using judicial minimalism theory as a theoretical tool and based on Chinese social, cultural and judicial currency.The Introduction part starts the thesis by an overview of the draft amendment of Chinese civil procedural law and scholars’heating discussion over it. By introducing the first public interest litigation sued by NGO, this part raises the phenomenon that judges do not know how to or dare not to make judgment in such cases, followed by the core question that what judicial power can do and what cannot.Chapter One, the limitations of judicial process in public interest protection, researches on the limitations of Chinese judicial process in public interest protection, and explains the exploration of judicial limitations by the courts by introducing the famous U.S. case Boomer v. Atlantic Cement Company.Chapter Two, judicial minimalism in public interest litigations, focuses on the theory of judicial minimalism, and explores the localization of the theory by comparing the differences and similarities in social structures, cultures and social systems of China and the U.S. Chapter Three, judicial activism in public interest litigations, studies how judicial activism works under the influence of judicial minimalism. By case study of Boomer v. Atlantic Cement Company, this chapter explains when and how judges should adopt judicial activism and how they are restricted in adopting it.Chapter Four, the systematic capability of judicial power in public interest protection, collects current researches on relative foreign systems and their misreading, studies the systematic selection of public interest protection of China, and gives recommendations.The Conclusion part concludes the thesis, and prospect the future of judicial power in public interest litigations.