On The Judge's Discretionary Power In The Civil Trial And Its Regulation

With the further development of the reform of the way of trial, the judge's exercising adjudicating power independently by law has been put into practice. However, the following question is the continuous appearance of the abuse of discretionary power by the judges which is a direct menace to judicial authority. How the judge exercises his discretion correctly and suitably in the trial is a subject worthy of deep study in the improvement of judicial system.The discretionary power is a subject both old and new. Which is often exercised in administrative and judicial power, but whether the judge's discretionary power is a form of exercising power by law or the power for the judge to make a decision freely? In this article the author puts forward that discretionary power is the power for the judge to weigh and adjudicate relating matters and make a fair and reasonable decision according to law or according to the condition if there is no specific stipulations. Which is a kind of public power in nature. The judge should ensure that discretionary power be exercised for a fair decision and its exercise must follow the principles of legality, reasonableness economy and publicity.Mastering law well is a kind of skill and interpreting and using it freely is a kind of art whose beauty lies in the magic stick of discretionary power that can turn stone into gold and can also bring disaster to lawful right and interest, so it is positive that the judge should have discretion, simultaneously the means and procedure of its exercise should be regulated and the outer supervision should be enforced to make sure the correct and reasonable exercise of it so that the trial can be the embodiment of truth, kindness and beauty.The emphasis is put on the discussion of judge's discretionary power in civil trial, it is not to say there is no discretion in criminal andadministrative trial. Comparing with other trial the judge's discretion in civil and commercial tiial is more distinct and the abuse of it is more usual. In fact the regulating means put forward in this article can be used in all the trials.