The Judge Discretion On Civil Litigation

Any power system, in order to achieve its purpose, will give its exercise of discretion rights operation particular subject space. How to treat the judicial discretion is an important issue considers the background of the ongoing reform in the trial system area in china. My view is that judges definitely have the discretion in the civil action. Exercising the discretion is not the obviation of the rule of law but one of the approaches by which to exercise power.Apart from the introduction and conclusion, the essay is composed of four chapters.Chapter One attempts to deal with the subject of the civil discretion. First, by putting forward a case in judicial process, the essay attempts to explain that the trial will be bogged down if recognize the facts and the application of the law fully in the legal basis. Then I define the civil discretion litigation from occasions, subject to object etc. Then the general civil discretion from two aspects of meaning and special significance for its existing reason is discussed. Finally through comparing two big law in the historical origin of discretion, it is concluded that both countries of Anglo-American law system and continental law system country; The judge has a discretion from scratch, from weak to strong historical development process.Chapter Two is supposed to make an empirical study of the civil discretion. First, through the case in the opening of the evaluation, I cited that the civil discretion include facts recognizing and application of laws. Secondly, from proof responsibility allotment, investigation and evidence collection, proof ability determination and proof force measure I demonstrated that the four perspectives of legal provisions fact call discretion of the judge. Finally, the fuzzy rules, conflict rules and lawful unreasonable rules demonstrate the call for the rule of law on the discretion of the judge.Chapter Three touches on the basis and expression of judges'civil discretion. First, I agree with "free heart certificate" and "discretionary" with consistency in concept, free heart syndrome is the judge ascertaining the facts stage makes a basic discretion performance. Another important way for the judge to exercise discretion ---- fact presuming, its main function is to help the judge decide how to determine the appropriate judgment rules in both parties have disagreements burden sharing. Finally, the essay discusses the manifestation of civil discretion when the judge applying law encounters the hole discretion, he can deal with the case separately from legal discovery, legal interpretation and legal renewal.Chapter Four tries to discuss the reasonable exercise of the civil law. Through the case of several types of the difficulty in the face of comb and puts forward the judge complicated cases, similar respectively by the different legal methods can be solved, and the case that the judicial practice. When the law for a particular items shall be appeared but does not cover or cover may, when the content is too general purpose expansion and with through portion of purposeful limit shrink way to solve. Above all, I think the judge should shoulder the legal order form mission. In my studying, the positive attitude of judicial discretion is accompanied with the strictly applying law in the trial. There should be harmony between the discretion and strictly apply law. Then the trial activities will be further scientific and reasonable.