The Discretion Of The Judge

Discretion is one of the object powers that judges have in the adjudication and is the embodiment of the cognizance .It Plays an important role in the trial. No matter in the Common law legal system countries or in the Civil law countries, the discretion is both accepted indubitably.As a special Power, discretion has its special functions not only in the application of law but also in the ascertainment of facts and the governing of judicial Proceedings. Basing on the commonness of the rights and the specialty of itself, discretion should be restricted by judicial proceeding in order to use this power properly. So it is necessary to bring in the thought of the procedure justice. This thesis involves two keywords: judicial justice and procedure justice. From the conception aspect, procedure justice emphasizes the independent value of the procedure, and Justice discretion is the procedure of the concrete discretion, so justice discretion is the value carrier of procedure justice. On one side, whether the procedure justice is the inherent value of judicial discretion or not is not determined and what kind of standards and functions are needed in order to carry out the procedure justice. On the other side, how can the judicial discretion meet the requests of procedure justice to realize the restriction to judicial discretion? The answers to these two questions constitute the contents of this thesis. On the base of the analysis of the circumstances of judicial discretion, in order to solve the problems that appear in the process? this thesis make it clear that judicial discretion must be carried out according to law. And it should also abides by the principles of legality, reason, sincerity and balance, and at the same time enforce the legislation, furthermore, to restricf and balance it by the party orientated procedure to guarantee the function of this kind power.Nowadays, China is in the current of change, and the innovation of Political structure and the reformation of judiciary correspondingly are going along tardily. As a significant content of civil trial, we should treat the discretion Objectively and use it carefully. The discretion should be regulated and, to some extent, restrained or reduced basing on the situation of our country.