On Judicial Discretion

It long has been a debatable topic that whether judicial discretion is the friend or foe of jurisdiction. Discretion of judgers is an indispensable segment of the application of laws. Now the reform of judicial system is undergoing in China, therefore how to deal with judicial discretion is a question with great theoretic and practical significance, which should not be evaded. Research on the problem attracts great attention from both judicial and academic circles in the western countries, nevertheless, in our country, the deep and systematic critique is seldom found, despite that there have been some articles setting foot in this field. Therefore, expecting the extensive attention and deep discussion from all walks of life, the author tries to conduct a tentative research on the important subject, which may bring about more valuable opinions from others. With regard of the need of theoretic research, the article is composed of preface, text (including three sections) and conclusion. In the preface, the article concerns the conflict between judicial discretion and rule of law, which initiates the topic that judicial discretion, a system in reality, exists extensively in life. Judicial discretion, unlike the past imagination, does not only exist largely in the administrative jurisdiction, but also, in fact, in all fields of law application and any judicial system. Jurisdiction in our country is not an exception, in which discretion can be frequently found in trail and procuratorate. The article mainly treats the judicial discretion in trial.The first part of the article is ontology of judicial discretion. It tries to edify the concept, basis and mechanism of judicial discretion. Reviewing the concept of judicial discretion, we can find the common sense hold by the Chinese and overseas scholars: judicial discretion is limited, and it is judges' power of free choice and independent judgment; the aim of it is justice and the criterion of it is rationality. As a power of jurisdiction, it is designed to reach the end of procedural justice. Our point of view is that judicial discretion is the power, which judges freely choose on the principles of laws, and also fully exercise with subjective flexibility in the light of knowledge, moral and particularity of cases. The limitation of laws is the basis of judicial discretion. The functions of judicial discretion, as a reality of system, can be concluded as overcoming the limitation of laws, settling legal disputes, promoting the development of legislation, and striking the balance between general justice and individual justice.The second part of the article is about operation of judicial discretion. The article systematically reviews the parallel structure of the operation of judicial discretion, which lies in both phases of objective cognition and legitimate justification, i.e. validation of the facts and application of laws. It is inevitable that judges use discretion when they validate facts, investigate evidences and analyze evidences; when apply laws, they interpret and even make laws. The article lays emphasis on the principle of rationality, with which judicial discretion must be in accordance. Judges are required to consider following factors: legislation purposes, reasons, principles, policies, and social justice. Affected by the individual quality and juristic environment, judges cannot avoid abusing the power, when they determine whether and how to use their discretion. The article comprehensively illuminates and analyzes the problem. To ensure the proper judicial discretion, our viewpoint is that the joint efforts should be made both from internal and external of jurisdiction. The internal ensurence mainly comes from the full improvement of judge's quality and the rationalization of judicial procedural. The article reviews the external ensurence in following aspects: constitutional government and independent jurisdiction, social culture environment, and juristic research and education. The author points out that all factors, which do not work independently, can...