On Judge's Discretionary Power In Our Country And The Amelioration Of It

The judge is the main body of jurisdiction, one part of which is discretionary power. In some way, whether the judge can appropriately exercise the discretionary power and knows exactly the limits of the"discretion"or not has an crucial effect in protecting the impartiality and efficiency. Law is abstract, whereas the cases in law practice are various and each case needs to be judged and conducted, in this way, the judge becomes the tie between law and the case. However, in our country's law practice, the question on the judge's discretion has not been recognized by common people, additionally, the fact is that judges in our country have more freedom in exerting discretionary power than judges in Anglo-American law system, therefore, it is necessary to do more theoretical research in this problem in our country to standardize the conduct of the judge who exerts the discretionary power.The thesis emphasizes particularly on the judge's discretionary power in the domain of criminal justice, the operation of which plays an important role in the whole process of criminal jurisdiction. The research on it has a critical meaning in improvement the level of our country's criminal jurisdiction and construction of the just criminal judicial system. The writer expatiates on the problem from four aspects. In the first chapter, by way of ascending the historical origin of judge's discretionary power and expressions by scholars and judges from domestic and overseas, the writer concludes the common characters of judge's discretionary power, bringing forward the concept and characters of judge's discretionary power. In the second chapter, the writer explains that the existence of judge's discretionary power is to remedy the common deficiency in law-making and meet the requirements of criminal substantial law and implement of penalty, whose value embodies three aspects at least, which are realization of individual impartiality, guarantee of flexibility of law and the avoidance of saltation in law-making. In the third chapter, the writer considers that the judge should obey to the principles of legality, equality, sense, discriminating treatment and open argument when he exerts the discretionary power, and he should introduce the ways of judgement reasoning, application of criminal law and value balancing to adopt the evidence, make sure of the fact and make the verdict. In the fourth chapter, the writer analyses that because of the lack of rational recognization in appropriate exertion of the discretionary power or the necessary qualification of the judge herself, the problems of judge's exertion of discretionary law still exist in our country nowadays. Thus brings on the illegal and irrational discretionary power, and ultimately leads to the justice corruption. In order to solve those questions, it is necessary to take measures in internal adjustment, together with external supervision and restriction., especially from the aspects of legislation, judicial procedure and the judge's qualification to standardize the judge's judicial conduct, ensuring the justness and the rationality of the judge's discretionary activities, and thereby to reflect the objective of equity and justice.