Judicial activism originated from the American legal system, where it emerged in the context of courts actively responding to social needs by creating and interpreting laws. Unlike American law, judicial activism introduced into China has undergone changes in meaning. In addition to requiring courts to actively create rules, some scholars believe that it should also include the courts' role in leading trial procedures, while others argue that it applies to the entire judiciary, being a fundamental characteristic and operational rule of modern justice. The author believes that emphasizing judicial activism broadly and without restriction can only lead to theoretical confusion. To implement judicial activism in civil trial procedures, it must be combined with specific procedural types. As a judicial philosophy, it can only be realized through procedural techniques.
The procedure for realizing judicial activism is the non-contentious jurisdiction procedure. Although judicial activism requires courts to play an active role during trials, including leading evidence investigation and procedural progress, the diversity of judicial power resulting in diverse trial procedures determines that it cannot be required for all procedures. Judicial power has two meanings: litigation adjudication power and non-contentious adjudication power. The procedures used for these powers are litigation procedures and non-contentious procedures respectively. Litigation procedures aim at resolving disputes, and during this process, courts should have the natural role of impartial adjudicator. If courts intervene excessively, it would likely damage the balance of procedures between both parties, thus it can only follow judicial passivism. Non-contentious jurisdiction procedures, on the other hand, involve necessary interventions by courts in the formation, alteration, or extinction of private rights relations to protect private legal interests. It is the realization of the state's guardianship function in the field of civil justice through judicial power, and its basic functional setting aims to prevent the occurrence of disputes. If courts also adhere to judicial passivism when handling such events, it means waiting for disputes to occur or further escalate before using litigation methods to resolve them, possibly missing the best opportunity for preventing and resolving disputes. Therefore, judicial power needs to be active within non-contentious procedures. In this way, the requirements of judicial activism for trial procedures can be fully reflected through non-contentious jurisdiction procedures.
In the past, the reform of China's civil trial procedures mainly focused on civil litigation procedures. The overall trend of this phase can be summarized as: weakening the court's authority involvement in the trial process and emphasizing the court's passive role. To clarify this point, a brief review of this period of judicial reform is provided here: The 1982 Civil Procedure Law (Trial) was the first civil procedure law code of New China. The basic structure adopted by this code was authoritarianism. To address the contradiction between insufficient judicial resources and continuously growing public demand for judicial services, courts began to promote measures such as strengthening the parties' burden of proof to reduce their own trial burdens. Due to the unique position of the evidence system in civil procedures, this reform ultimately triggered an overall reform of the civil trial system. Looking back now, this reform generally followed the path of gradually establishing party autonomy in civil trials. The issuance of the "Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Civil Litigation" in 2001 indicated that party autonomy had been maximally realized within the framework of current law. The two main criteria for judging party autonomy - debate principle and disposal right principle - were basically implemented.
However, this reform also generated some issues that cannot be ignored: First, civil trial procedures became overly singular, leading to a tendency to exacerbate conflicts in certain cases. China is currently in a period of social transformation, with increasingly complex types of civil disputes. Many events are not suitable for handling under the party autonomy procedure. Typical examples include: First, non-contentious events, referring to uncontested civil events such as the appointment of guardians, supervision of guardians, selection of liquidators, shareholder applications to inspect company assets, and permission to view related company documents; Second, family matters, mainly civil events arising from various family legal relationships, such as marriage and adoption events. These events have characteristics of strong public interest, time sensitivity, and often manifest as continuous legal relationships, requiring rapid handling by courts. Additionally, the substantive legal norms involved are generally lacking in clear content, serving more as guiding judgments, requiring judges to combine relevant situations for comprehensive balancing to make decisions. This type of decision-making is often future-oriented, involving proactive and supportive intervention aimed at forming new legal relationships. Therefore, the handling of these events requires judges to play an active role, using their authority to actively intervene in evidence investigation and procedural operation. However, China's Civil Procedure Law does not distinguish between these events and general litigation events, still treating them as objects of civil litigation procedures. Even for uncontested events, they are handled after a dispute arises through litigation. Before the reform of civil trial methods, civil procedures were relatively simple, with only two forms in the litigation procedure - trial and mediation. However, due to the authoritarian nature of the litigation procedure, courts could assume the role of national guardians besides resolving disputes. For unclear substantive law areas, decisions could be avoided through mediation, meeting the demand for authority intervention in these events. But with the deepening of trial method reforms, litigation procedures gradually shifted towards party autonomy, making it difficult for the new procedures to meet the demands of these events for authoritarianism. The mismatch between trial procedures and event demands inevitably induced greater social conflicts.
Secondly, litigation procedures characterized by party autonomy have inherent disadvantages that are difficult to overcome. Party autonomy litigation procedures inherently suffer from high litigation costs and delays, which have existed since the inception of this procedure. Despite multiple legislative amendments in civil law jurisdictions, there are still no good solutions within the procedure itself. For China, the inherent disadvantages of party autonomy litigation procedures will not disappear, and based on China's litigation culture, some localized defects will also emerge. Without good solutions, the combination of these two factors is bound to affect the functioning of the entire dispute resolution mechanism.
Therefore, emphasizing judicial activism in China's current situation has strong practical significance, serving as an adjustment to the deviations of the previous period's reforms. However, this emphasis should not come at the expense of denying the connotations of judicial passivity; rather, it should comprehensively emphasize the meaning of judicial power. To avoid possible ambiguities in various procedural functions caused by emphasizing judicial passivity, China needs to formulate non-contentious jurisdiction procedure laws to standardize the play of judicial activism. From the experience of civil law jurisdictions, using the judicial activism inherent in non-contentious jurisdiction procedures to mitigate the shortcomings of litigation procedures is their common practice. In Germany, expanding the scope of application of non-contentious jurisdiction procedures and incorporating certain litigation events into non-contentious procedures avoids the incompatibility of certain events with litigation procedures; Japan, on the other hand, cleverly incorporates mediation systems into the scope of non-contentious jurisdiction, successfully resolving crises arising during the localization process of party autonomy litigation procedures.
Moreover, formulating non-contentious jurisdiction procedure laws has the following roles: First, it helps prevent disputes. By proactively intervening through judicial power before non-contentious events lead to controversy, timely rulings can be made, avoiding disputes on one hand and facilitating the correct formation of civil rights and obligations on the other. Second, it resolves the functional confusion issues arising from the coexistence of mediation and trials. Mediation represents the application of authoritarianism and embodies judicial activism; litigation trials focus on party autonomy and emphasize judicial passivity. Two completely different dispute resolution methods with different natures and functions set within the same procedure are difficult to apply in balance, easily leading to overemphasis on one side while neglecting the other. Incorporating mediation into non-contentious jurisdiction procedures avoids this nature conflict, as mediation and non-contentious jurisdiction procedures share homogeneity. Moreover, Japan's successful absorption of mediation into non-contentious jurisdiction procedures proves the reasonableness of this absorption method.
(Author's affiliation: Southwest University of Political Science and Law)