Judicial Discretion

In the contemporary society, the judicial discretion is reserved under any legal systems. The performing of the judicial discretion has played an important role in the realization of justice both on the individual cases and the creation justice, and also on erasing the omitting of the regulations. In China, the judicial discretion is also the predetermination of the rule of law system and the usual practice in the judiciary. Starting from above understandings and analyzing the concept of the judicial discretion, combining comparatively different theories both in domestic and foreign countries and the experience of the author on being judge, this article analyzes different theories of the judicial discretion, from the approaching the connotation, operation and the factors related (including the experience, intuition, knowledge, logic and the open of the view) and assertions and analyzes the basis of the system of the judicial discretion, from the view of cost. This article also approaches the justification of the judicial discretion , thinking that the obedience to the procedures and the rationalization of the sentence are the two most basic conditions for the judicial discretion to receive the justification. At the same time, in the phase of the recognition of the fact and the appliance of the law, the judicial discretion has the concrete embodiment. Finally, through approaching the particular judicial issues relevant to the judicial discretion under the Chinese judicial system, this article seeks for the exit of the theory of the judicial discretion. It approaches the connotation, operation, different theories, basis, justification conditions and the concrete appliance aspects with creative meanings. During this process, because the judicial discretion refers to many aspects of the judicial process, some important jurisprudence issues such as judicial theory, judicial system etc. are illustrated here. This article is divided into six chapters. Chapter one: Brief Introduction of the Judicial Discretion This chapter resolves the connotation of the judicial discretion by listing several understandings of the judicial discretion and concludes the view to the meaning of the judicial discretion. It also analyzes the operation of the judicial discretion, pointing out that in the operation of the judicial discretion , experience and intuition, the knowledge system, logic, and the view field will fuse into this process. The need of the main body is the motive force system and its way of thinking is the adjusting and controlling means of the judicial discretion and the logic derivation is the guiding factors of the judicial discretion. This chapter continues to analyze different theories and assertions of the judicial discretion and illustrates the rationalism and experimentalism, formalism science of law and realism science of law, different theories and assertions of Hart and Dorkin to the judicial discretion to get the standpoint of the theory of this article, that is, the judicial discretion will not destabilize "the law order centering in rules"of the lawful society, but make the rules keep their reality and vitality to accommodate the need of change and development of the society, meanwhile, it takes the basic principle of the law into consideration. The reason why the judicial discretion can reach this goal lies in that it endows the law with the highest power, recognizing that the rule by law has some shortcomings and price and sound procedures can make the objective motility of the judge response to the need of the society. Chapter Two: The Basis of the Judicial Discretion This chapter applies some means of the systematic economics to analyze the issue of the basis of the judicial discretion . Because it refers to some cost factors such as negotiation, it makes the law regulations have thetechnical traits with a kinds of universality, not the particularity. This makes the law regulations have standardization, abstractness, definiteness with the faintness, flow of the value concept and the stability taking the concept of law as the most concept to adjust the social life. Otherwise, it has the low cost profit and this smallest cost will make the regulation and reality exist the potential conflicts to result in the difficulty in realizing the ideal pattern to adjust society through the law. Therefore, in the practice of the law, there is the issue of the mutual appearance of the definiteness and indefiniteness of the law. This chapter thinks that the reason why harness of the rules could make the human society get rid of the rule of the chance attributes greatly to the definiteness of the law. Without the definiteness of the law, there is no the true harness of the rules but only the discretion in the random disposal. However, because it is difficult for the rationalization of the form of the law system to reach the ideal degree, in other words, although it reaches the ideal degree, it is impossible to present all the demands of the particularity. Therefore, in the process of the judicature, the discretion is not only unavoidable, but also necessary. Chapter Three: Justification for the Judges to Exert the Judicial Discretion Since the enjoyment of the judicial discretion unavoidable and the judicial discretion means the factors of the human beings, this factor means some accidental indefinite outcome for the clients. Therefore, in order to make the judges exert the terminal of the judicial discretion —the judgement can get the recognition of the clients, the justification of the judicial discretion is very important. The obedience to the procedures and the rationalization illustration to the are the two most important conditions for the judicial discretion to get the justification. In the first condition, this chapter starts from the justice concept in the judicial field, through approaching different power kinds of the justice in the judicial field,asserting that the procedures are the important factors for all the judicial discretion to get the justification in modern law field and this procedure needs to take the equal treatment as the primary conditions. This equal treatment embodies both in that of form and that of actual meaning and the former is the in the superior place. Only when we realize the equal treatment in the form meaning, we can realize the equal treatment in actual meaning. To make the rationalized illustration to the sentence is the second condition for the judicial discretion to get the justification. This chapter approaches the reason why the justification of the sentence illustration is the important condition for the judicial discretion to get the justification and in the process of rationalized illustration, what are the factors inside and outside the law while the judges exerting the judicial discretion. This chapter analyzes the above viewpoints through the case of Mr. Yang was suspected to be infected by AIDS virus to violate his honorary right and Qian Yuan of Shanghai Foreign Language College sued Shanghai Quchenshi Commodity Co. Ltd. At last, this article demonstrates the dialectical relationship between the first condition and the second condition for the judicial discretion to get the justification. Chapter Four: the Judicial Discretion and the Designation of the Facts The designation of the facts and the appliance of the law are the most basic aspects in the trial activity, among which, the designation to the dispute facts is the key link in the handling of the whole case and the judicial discretion has the concrete embodiment in this phase. This chapter argues that in the link of the designation of the facts, what kind of important place it has. Through the case of the dog biting the woman, it illustrates that there is the distance between the objective facts and facts stated. Then, there will be the problem such as how to do the discretion, to which place the judges designate the facts and what means the judges can take to designatethe facts. This chapter takes the sample of Shu Yiping sues Lanjian Group product responsibility compensation damages to illustrate the judicial system ethics and the concrete demand of the discretion in the fact designation. Due to the limitation of the cost, rationality and the violation of the right will result that there is the difficulty in seeking the facts in the judicial procedures. Therefore, in the phase of the fact designation, the exertion of the judicial discretion should meet the need of the necessary judging and this conforms to the system ethics demand of the judicature. It continues to illustrate the means of the judicial discretion in the fact designation, which include the discretion in the evidence selection and discretional evaluation of evidence. This chapter deals the relationship between the discretion and discretional evaluation of evidence and the concrete embodiment through Acro Properties limited V Yau Chun Wing case. Finally, this chapter analyzes the relationship between the indication and discretion. Chapter Five: the Judicial Discretion and the Appliance of Law Due to the technical traits of the law and the complexity of the facts, while applying the law, the judges often face the problem of finding the law and creating the law. Law reasoning and law explanation is the two kinds of means of the actions of the judges. Law reasoning must base on the logic of the form and it must overpass the logic of the form and it relates to the inner factors of the discretion of the judges. This chapter thinks that law reasoning is both the means of exerting the judicial discretion and the process of the judicial discretion. Whether the choice of the law terms or the fact becoming lawful, in the aspects of the form reasoning and essence reasoning of the law reasoning, the subjective judge will appear and the discretion is produced. In law explanation, due to different cutting points, the understanding of the nature of the law explanation. The concept of the law explanation used in this chapter refers to that as a kind of technique or means. This chapteranalyzes the relationship between the law explanation and discretion. Although the written forms of the law regulations as the static text and that as the dynamic are the same, they are two different languages. Once the law regulations are used, it has the understanding elements and evaluation factors of the users. The process of "how to understand"is not only a law explanation process, but also that of exerting the discretion power of the judges. The judges inject their own meanings while "explaining the law". Finally, this chapter analyzes the appliance of the law explanation briefly, which includes the unity and coherence explanation means, "gold rule"and ethics explanation, etc. Chapter Six: The Analysis on the Present Situation of Chinese Judicial Discretion Due to the position fixing of the role of the judges, the sound exertion of the judicial discretion depends seriously on the procedure assurance, because the judicial discretion refers to the factors of the humans, in the incomplete system background, it will bring in serious bad effects. This article analyzes the traits of being latent and weakening of the present situation of Chinese judicature, and points out that in order to exert the judicial discretion, it is very important to build up a judicial system corresponding to the nature of the judicature. This chapter discusses the above issues from the point of relationship between judicature and leadership of the party, judicial organs and state power organs, judicature and administration organ, judicature and media, construction of the judge system thus approaches the particular judicial issues that influence the exertion of the judicial discretion .