A Study On The Judicial Discretion

Judicial discretion, as an important part of the judicial power, deserves attentions in both practical and academic respects. A judge may exercise discretion in accordance with the principles of justice, reason and the facts of each case when the legal rules appear to be incomplete or inconsistent. The development of rule of law in modern society has elevated people's expectation for the social control function of the law, meanwhile, they may be puzzled by the limited function of law. As a remedy for such limitation, judicial discretion becomes a must in the process of achieving substantial justice. However, discretion may be abused due to its characteristic as power. Hence, it's essential to keep the judicial discretion under control. This paper focuses, in accordance with the achievement of the western legal theory and the legal practice in our country, on the regulating of the exercise of the judicial discretion and on the control of the abuse of the judicial discretion by system, and points out that the combination of strict rules and appropriate discretion is the best approach towards substantial justice.