Program Control Of The Judge's Discretion

Discretion is one of the object powers that judges have in the civil adjudication and is the embodiment of the cognizance; it plays an important role in the civil trial. No matter in the Common Law legal system countries or in the Civil Law countries, the discretion is both accepted indubitably.As a special power, discretion has its special function not only in the application of law but also in the ascertainment of facts and the governing of judicial proceedings. In order to use this power properly, we, basing on the commonness of the rights and the speciality of itself, should restrict it by the rights of civil procedures and powers of other countries. To insure the exertion of the power's functions, it should be used lawfully by judges under not only the principals of legality, rationality, good faith and equilibrium but also the civil procedure fundamental, idiographic procedure system, final judgment and surveillance from interior and exterior.The society of China is in the variation. When economic regime has become the market economy which bases on state-owned economic entity and contains diversified economic sectors, the innovation of political structure and the reformation of judiciary as an important part of it correspondingly are going along tardily. As a significant content of civil trial, we should treat the discretion objectively and use it carefully. Though enlarging the discretion is the tide in the world, because of severity of the discretion abusing in our country, the discretion should be regulated and, to some extent, restrained or reduced basing on the situation of our country.