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能动司法包括审判上的能动司法和审判外的能动司法,具有情法兼容、调判结合等特点。在中国完全遵守西方传统的司法克制的运作方式,效果不尽如人意,从法的运作和权利意识的关系来看,能动司法在遵守了西方基本法治理论的基础上,与中国的传统法文化相适应,有助于提高司法公信力、增强公民权利意识,是一个良性循环的法律运作方式,可以为西方法律制度在中国运作提供一个正当性基础。
Active judiciary includes active judiciary at trial and active judiciary outside trial, with the characteristics of being compatible with law and combining with adjudication. In China, completely abiding by the traditional mode of judicial restraint in the West has not achieved satisfactory results. From the perspective of the relationship between the operation of law and the awareness of right, on the basis of abiding by the basic theory of the rule of law in the West and combining with the traditional Chinese legal culture Adapting to this will help to enhance the credibility of the judiciary and enhance the awareness of citizens’ rights. This is a virtuous circle of legal operation that can provide a legitimate basis for the operation of the Western legal system in China.