Study On Judges' Discretion

Judges are in a dilemma during the course of judiciary proceedings in most cases. Because the judges are always have to make a choice between sticking to rules strictly to maintain the exterior authority, and using their discretion to realize the ultimate value of laws.Where there is justice, there is judges'discretion. The power of justice is discretion in nature. The whole process of judiciary is the process that the courts or judges put the nonobjective rules of law into specific cases through lots of consideration. During this course, they verdict and balance the interests in disputes, and turn fairness and justice into reality. We can not agree with some scholars'views about the conflict between strict rules and discretion. At the same time, we admit the arguments about the discretion, such as the nature of it, the scope of its limit, the ways it operating; and so on never end from its first day. All of these problems are focus on how the judges make their choices between the strict rules and their discretion during the law practice.This dissertation is divided into nine chapters.In chapter One, it defines the concept of judges'discretion. Through comparing the definition views of internal and overseas scholars, it discusses the implication and characters of discretion. It draws the conclusion that judges'discretion is a power of choice in judiciary. The second chapter reviews the development history of judges'discretion in western countries, especially in ancient Greek, Europe in medieval, in the Great British and in some continental countries of 20th century。Based on these, it finds judges'discretion is always swaying with relative freedom and strict limitation in all human being history。Chapter 3 discusses the judges'discretion in ancient China.According to the order of dynasty, it can be divided into free discretion in slavery times, strict control and relative freedom. It tries to find the developing laws of discretion. In the fourth chapter, the dissertation discusses the theoretic bases of judges'discretion.It argues the rationality of discretion from the judges'subjectivity, the nature of laws and the requirements of perfecting laws.Chapter 5 puts forward the subjective requirements of judges'discretion. It discusses a qualified judges should meet five aspects requirements, including the judges'knowledge, their ability, their morality, their right ideas and the free space they should have.In the sixth chapter, the dissertation analyzes the different stages of judges'discretion. It argues the main methods the judges using their discretion in distributing the burden of proof, in cognizing the facts and in explaining laws.Chapter 7 evaluates the functions of judges'discretion. The judges'discretion balances the procedural justice and substantive justice. It balances general justice and individual justice, too. And it also balances justice and efficiency.In chapter 8, the dissertation discusses the side-effect control of discretion. The uncontrolled judges'discretion can lead to a lot of injustice phenomena. Based on objective analysis, the dissertation brings forward a series of control measures.In the last chapter, the dissertation gives suggestions to make the judges'discretion perfect. It urges to enlarge the power and scope of the discretion based on present conditions.