On The Judicial Discretion

Judicial discretion is the power which judge use in litigious activities, to define the boundaries of the law rules or principle, to achieve justice and fairness, it display subjective initiative when judge choose and apply reasonable law. There have been disputations and divergence towards whether judges should the discretion have, and the ways and scopes of executing discretion, etc. function As a result of the legal limitation and lag, the law cannot bring all reasonable anticipating to the people, on the controlment of society. Therefore, considering of supplement and the relief, judicial discretion becomes the essential item of the judicial process. This article, aiming at the conception, application scopes of judicial discretion, analysis the Objectivity Existential, and according to the present situation, suggest to establish dynamic and independent judicial systems and specification mechanism about judicial discretion.It is divided into six sections:The first section is prologue. It is used to introduce the Chinese present situation of judicial discretion by case analysis. Nowadays in China, more and more people attach importance to the judicial discretion both in jurisprudential circle and government; there are some detailed stipulations in theory too. However, without definite legal position, explicit regulations and specification mechanism therefore, in the actual administration of justice the judge in china grasps more space of judicial discretion, often has the event occurrence which abuses the discretion, even directly causes judicial corruption, and hampers the justice seriously. Strengthen the theory research of judicial discretion, is significant.The second section defines the concept of judicial discretion, by the means of analysis both the word and inner meaning of Judicial Discretion, define probably of Judicial Discretion. It introduces the different attitudes to the judicial discretion and the main reasons, and preliminarily explains the need of the judicial discretion, finally knows the essential attributes and application scope of judicial discretion.The third section expatiates through historically exploring these traditions and comparing theories and practices in different countries or law systems, we learn that the existence of defect and loophole of law in judicial process and judicatory's intrinsic requirement for case equity and justice are the inner causes of the existence of judge's discretion. Discretion is inevitable during the application of statutory norm because of defect of statutory norm and uncertainty of rule of interpretation. The exercising of discretion can solve the conflict of different values of law.The forth: Expound the characteristics and conductors about illegal exercising the power of judicial discretion, points out that as the replenishment to limitation of law; judicial discretion has value of promoting law development, simultaneously also has the flaw which the general authority all has. Ignore the feature, would bring the absence of judicial authority, public confidence and other negative influence, are all leads to the risk of judicial discretion.The fifth mainly deals with china present situation in the evaluation of judicial discretion. Firstly introduce the viewpoints or theories concerned judicial discretion in Chinese. It points out that there are conflicts between the neglect in theory and in legislation. There are no spaces for judicial discretion in contemporary legal system in China. However, in judicial action, the judge often exercises discretion in order to fit social need.The sixth: How to build scientific and reasonable operational mechanisms. The utilization reasonable mechanism of judicial discretion is the keystone. Besides those utilization principles, the judge's discretion in our country should be constructed in these aspects: reasonably authenticating, coordinately building related judge system, introducing trial cases and case law mechanism, and constructing judge's discretion, conduct the supervising activities from media. It also discusses a qualified judges should meet three aspects requirements, including the judges'knowledge, morality, and right ideas.