On Judges' Discretionary Power Of Penalty Measurement And Its Regulations

The discretionary power certainly exists because of the personal factors. The discretionary power has the characteristics of absoluteness and relativity. Putting more stress on the discretionary power will lead to the judicial randomicity and cause damage to the unity of the criminal rules of law. The relativity of discretionary means it is not strong but weak. In modern countries, the discretionary power appears in a weak form. The subject of the discretionary power is judges. The sentencing discretionary power and strict rules forms a unity of opposites. In modern society, there is no unlimited discretionary power, also no extreme strict rules, which both exist in the judicial practice across the world. The sentencing discretionary power gives judges initiatives to some extent, can get rid of the limitation of the written law, to realize particular justice. Considering the law authorization and ideal, the existence of the discretionary power has its own rationality. As a kind of power, the discretionary power easily can be expanded, and cause the abuse of it as well as the judicial corruption. Because of the limitation of the written law and the special roughness of legislative techniques in China, it causes that judges in China have huge discretionary power, what's more, many judges are inferior in quality, it is found much unfairness and deviation in sentencing, which has heavily treaded on the principle that everyone is equal before law and that sentencing should be corresponding to crime, this above also has caused judicial credibility has been seriously challenged. It has become a big issue how to acknowledge and regulate the judges' discretionary power. The author wishes that unity of criminal law can be implemented by means of reforming in sentencing, regulating the discretionary power, improving the quality of judges, supervising judges and reforming in judicial procedures and entities.