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社会转型时期,新型纠纷、疑难案件纷至沓来,代表司法权的法院如果一味恪守司法被动的原则将难以获得社会的认同。放眼世界,法院不再局限于定纷止争的基础功能,而是逐步衍生出扩展功能,并且越来越多地参与公共政策的形成。本文正是从现代法院的功能定位出发,探寻法院形成公共政策的理论基础和现实基础,同时借鉴域外经验,期望有所裨益。
In the period of social transition, new types of disputes and difficult cases are pouring in. It is difficult for courts representing judicial power to strictly abide by the principle of judicial passivity to obtain social recognition. Taking a broad view of the world, the court is no longer confined to the basic function of determining and settling disputes. Instead, it gradually derives its expansionary functions and is increasingly involved in the formation of public policies. Based on the functional orientation of modern courts, this essay explores the theoretical basis and realistic basis for the formation of public policies by courts. At the same time, it is expected to benefit from the experience of other countries.