Research On Judge’s Power Of Discretion From The Perspective Of Rule Of Law

Judge’s discretion is an objective fact in any country of rule of law. It is a method of rule of law, serving the construction and development of rule of law. But in certain stage of development in China, judge’s discretion has not enjoyed the acceptance and respect as in developed countries. The reality of the exercise of power has not only given rise to the resistance and suspicion from the public, but also the disquiet from the academic circle. How to control and optimize the power of judge’s discretion has been an actual issue. To develop the inner thinking ability and exterior technical content are the most important factors of progress, in addition to the construction of system. The text composes of two parts:ten chapters except for the introduction. The content is summarized as follows:Introduction summarizes the academic and practical sense of the study. The arguments concerning the judge’s discretion are summed up, and also the view of thought, means of study of the study, etc.Part oneChapter one, which analyses the academic and practical foundation of the judge’s power of discretion, For the perspective of philosophy and jurisprudence, it is proposed that the issue of strict rules or discretion mirrors the relationship between the rule bylaw and the rule by man, thereby leading to the attention to the issue of rule by law. This chapter then analyses the necessity of power of discretion from the perspective of import, objective and path of rule of law, and the importance of power of discretion from the perspective of values it can possibly provided, such as order, justice and human right.Chapter two is comparative studies, analyzing the obvious difference between civil law, common law and Chinese legal system, concerning the power of judge’s discretion. Chinese judges grow up against the cultural background that the proportion and law must be both considered. From the view of legal heritage, judges are accustomed to discretion appealing to emotion. However, the judicial pattern of written law, being established after liberation, has strengthened the thinking way of legal provision. This confusion makes judges move forward to two extremes.The third chapter puts forward the realm of judge’s power of discretion. In the matter of fact identification, judges should give correct assessment of the form of evidence, burden of proof and competence of evidence. In the matter of the cognition of laws, judges should give their definite meanings by using correct legal methodology. Judges also should realize the legal purpose of different department laws actively, coordinating the complex relationship between the form and substance, the individual and society, public powers and private rights, the legitimacy and appropriateness. Therefore, power of discretion is omnipresent, which is an embodiment of the humanities of legal activities.Chapter four discusses many elements that are influential in the result of discretion. Judge’s discretion bases on his legal knowledge, including laws and legal spirit; judge’s thoughts are pushed forward by his inner conscience and prejudice; judge’s experience often suggests the direction of moral certainty. judge’s social sense, political sense and sense of professional safety would strongly promote judges to arrive at a conclusion or get over internal bias. The operation mechanism of discretion is very complex, it is unrealistic to control the exercise of judge’discretion by means of outside force, without attention to the process of judge’thinking.The fifth chapter indicts that the power of judge’discretion sould be controled, by the system and method of rule of law, not by the utilitarian ways such as educational activities and interim adjustment. We should respect the nature of the power, promote judge’s professional capability, moral cultivation and judicial technology, from the view of the subject of power. It is a pragmatic way to unify the way of legal thinking and legal methodology to achieve the consistency of thinking and activities. It is only by highly unified exercise of powers, can the judge’s discretion be accepted and judicial authority assured.Chapter six focuses on practical issues concerning judge’s discretion such as judicial activism and judicial democracy. Judicial activism has caused many debates in both theoretical and practical extent. Not only judicial activism but also judge’s discretion should abide by the bottom line of legitimacy, otherwise, the judicial function would fail and bring about antipathy. Without good discretion, judicial activism would beyond judicial authority. Judicial democracy, such as the people’s jury, is deemed as a favorable system to supervising powers, however the reality is far from satisfaction. The process of renovation will be difficult, but it deserves.Part twoChapter seven is to reveal the process of dialogue between judges and the laws. It displays how the judges exercise their power of discretion during the process of reading laws. Judges will use various judicial skills to resolve legal issues, if they can choose the same legal methodology to explain laws or fill up where laws have defects, we could expect same cases treated equally. Provided judges have not received unified education of legal methodology, their discretion would go with rich personal features as the result of personal experience of intuition.Chapter eight concentrates on the study of legal reasoning and argument. Legal reasoning and argument is a very complicated technical and mental process. During this process, judges show their particular knowledge of law and humanistic quality with broad sphere of discretionary power. In the event that the facts are not clear and the law is undefined, should the judges wisely ascertain the major premise and the minor premise. As for the argument, judges should choose powerful materials as supplement. This is also an issue of thinking ways. Therefore, it is an positive measure to pursuer unified thinking model to keep away from the abuse of powers.The ninth chapter mainly discusses the relationship between discretion and balance of interests which is an important methodology of jurisprudence. Especially in those cases where the law has granted certain spaces of discretion, should the judges select the most favorable scheme among those acceptable. Generally speaking, balance of interests only makes us more self-confident on what we have chosen, however in particular circumstance, it will make judges form inner belief, and determine the ultimate direction of adjudication.The last chapter tells about a case to illustrate the judicial wisdom of judge’s discretion. Based on the analysis of various viewpoints and reasons, it is concluded that the process of adjudication is a process of dialogue between the subjects and the objects, a process of thoughts collision. Judges cannot immune against subjective factors, because humane activity is moral action and thinking action, with remarkable personalities. So long as we pay much attention to the homogeny of judicial personality, the conscientiousness of subjects will make up the powerlessness of external supervision.