On The Judicial Discretion

In Judicial practice, judicial discretion is not only to resolve the disputebut also directly related to the life,liberty and rights of citizens .Therefore,the study of judicial discretion has great theoretical and practical significance.The judicial discretion involves many aspects, and scholars have conductedresearch on this issue, so the author tried to limit this research of judicialdiscretion within the following three aspects. Firstly, this paper is primarilybased on the jurisprudence perspective to the study, while the selected casesare not adhering to one legal department, both criminal and civil cases, andthe purpose is to make the analysis more general. Secondly, many scholarsbelieve that the judge has discretion not only in the legal application but infact and evidence. This paper studies the judicial discretion only in the legalapplication. Thirdly, this paper focuses on the analysis of the regulation of theexercise of the judicial discretion from the system perspective.This paper consists of four chapters:The first chapter outlines the judicial discretion. The author defines themeaning of the judicial discretion from five aspects of the premise, principal,object, form and substance and on the basis of that preliminary analyzes thenature of the judicial discretion. In the author's view, the premise of thejudicial discretion is legal limitation, the principal is the judge, the object isthe facts of the case and the applicable law and the substance is a real optionwith a variety of specific forms. On this basis, the author defines the judicialdiscretion as: in a variety of applicable legal rules the judge reasonablychooses one of them, or in the absence of clear rules that can be appliedexplains the reasons for judgment in detail. And its essence is a choice, whichshould be binded by the principle of rationality and legitimacy. Next theauthor analyzes the nature of the judicial discretion. Through comparing thepublic power and the private rights, the author draws the conclusion that thenature of the judicial discretion is public power.The second chapter introduces the different attitudes to the judicialdiscretion and the main reasons, and preliminarily explains the need of thejudicial discretion. There are different attitudes towards whether the judgeshould enjoy and exercise discretion. In the author's view, owing to the legallimitation, it is impossible for the judge to mechanically apply the law. So itis inevitable for the judge to enjoy and exercise the judicial discretion in thecourse of the legal application. Because of the limited nature of legislatorsand the continuous development of the society, it is impossible for legislatorsto work out perfect law. The course of the implementation of the law isaccompanied by the legal interpretation,which leaves space for the judicialdiscretion;At the same time , despite the so-called legal interpretationmethods and rules can ensure the interpretation of the judge relative certainty ,it is impossible to ultimately eliminate the judicial discretion. Although thejudicial discretion brings the legal operation relative uncertainty, it justovercomes legal limitation and coordinates the conflicts among various legalvalues. In this chapter, by introducing the different attitudes towards thejudicial discretion and the main reasons, the author presents own view thatthe judicial discretion has an important value and the need for its existence,and from three aspects analyzes the need for its existence.The third chapter mainly analyses the judicial discretion in the buildingof the legal system of our country. The author first analyzes the externalsystem of the judicial discretion. In analyzing its system environment, theauthor uses our legal explanation system as a starting point. Because thejudicial discretion often depends on the legal interpretation by the judge,therefore, only through the system design of the power of legal interpretationcan the pace of the judicial discretion be revealed. In addition to the systemof the legal interpretation, the conflict resolution mechanisms of the legalnorms are also a starting point. The author' analysis shows that our systemsof legislation interpretation,judicial interpretation and the conflict resolutionmechanisms of legal norms tend to make the process of legal application intothe mechanical one. Then the author has conducted empirical observationthrough the analysis of specific cases and found that the judge did not bestrictly in accordance with the system design in practice, but had his own setof action logic. Legislative interpretation system has not been strictlyimplemented. The power of judicial interpretation that the Supreme Courtshould have exercised evolved into "each request, each retained" in practice.The power of interpretation is shared by lower courts and the existing normsconflict resolution mechanisms have faced repeatedly challenges andalternative implementation. Therefore, the author believes that although thesystem design does not leave much room for judicial discretion, but in factthe judge still exercises discretion. And in the following chapter how toregulate the judicial discretion will be discussed.Chapter IV mainly deals with how to regulate the exercise of the judicialdiscretion and preliminarily analyzes how to build a scientific and reasonableoperational mechanisms. In this part, the author first analyzes the reasons thatthe exercise of the judicial discretion must be regulated, and then fromsubjective factors and the external environment analyzes the factors thatimpact the reasonable exercise of the judicial discretion and the improperconsequences, and finally from operating mechanisms, exercise rules andsupervising mechanisms makes own recommendations for the reasonableexercise of the judicial discretion.In the part of the conclusion, the author summarizes the whole text,draws own conclusions and makes own stand. In the author's view, owing tothe legal limitation, it is inevitable for the judge to enjoy and exercise thejudicial discretion in the course of the legal application. It is the judicialdiscretion that makes the laws correctly implemented. Achieving judicialequity and justice, the key issue is not to eliminate discretion, but how toregulate the exercise of discretion and how to ensure the judicialindependence. This requires that we must reform and improve the currentsystems, establish dynamic and independent judicial systems and entitlejudicial discretion to the judge. At the same time we should establishscientific supervising mechanisms to ensure the reasonable exercise of thejudicial discretion in order to achieve judicial equity and justice.