On Research Of Practice Of Judge Discretion In Civil Procedure

During civil procedure, the judge enjoys broad discretion to some extent . thepower of discretion is invested in judge by law which is determined by the verynature of law itself.The judge shall explain and select law to apply based on specificcase strictly subject to the values of justice and equity. Discretions for judge exist inorder to achieve the procedural goal of justice and equity which is a processcombined with the value selection of a judge and is both a flexible and limitedprocess. Discretion is determined by the limit of law, the nature of application of lawand demands of judicial justice and efficiency.The practice of discretion is bound not to be against mandatory law and shouldembody the values of law. The judge must act according to the principle of rationalityand justice to extend an equal chance for claimants to participate in the process.The process of judging is also a process of legal reasoning which is a process ofpractice of discretion. Besides legal reasoning, explanation of law and the filling in ofloophole for law are also ways of practice of discretion.Because of the tradition of strict law principle in civil procedure of our country,we neglect or avoid to admit the existence of discretion and the academic circle hasnot research profoundly on this issue which causes the lack of supervision andregulation of discretion in trial practice.In practice of trial, there are two problems existent in discretion of judge: one isabuse of discretion which harms the uniformity of law application and damages theauthority and stability of judgment by court;another problem is that the abusecontributes to judicial corruption which devastates legal justice and equity. This paperholds that we can solve these problems through ways of legislative control ,independence of jurisdiction, improvements on judge competence and proceduralcontrol.