On The Theory And Reality Of Judicial Discretion

Discretion is a constantly-discussed topic in the field of law and philosophy; its relationship with nomocracy is always a hot issue.Judicial discretion, the basic contents of exercising imperia, is greatly concerned. It directly influences the final consequence and closely related to people. Currently, China is performing the economic and political reform in an all-round way, having an influence on the reform of way of trial. Combined with the judicature environment in China, the thesis mainly deals with the applicability of law, with it arguments that the reasons why discretion exists, Chinese laws and the reasonable employment on how to realize judicial discretion. The thesis aims to contribute the ongoing reform of judicature.The preface talks about the wide existence of discretion, based on the social requirement, which is a reality by rule.There are four parts included in body section. Partâ… focuses on the necessity of judicial discretion. Introduces the British judges'presentation on discretion followed by its concept. The articles defines the right of discretion in four aspectse; Classify judicial discretion according to the restriction ways: the entity limits and the procedure limits; classify the judicial discretion according to the obtaining ways : the clear discretion ,the tacit discretion and the Legal loophole. Thus reaching an agreement: the right is the limited right. Because of the limitation of law itself, judicature can not be exercised mechanically, and therefore discretion comes into use. Moreover, discretion can be eliminated neither in system nor in methods. It is impossible that dispelling judicial discretion no matter from the system or from the method .Only if an agreement isn't reached in society on a specific legal case, different judges may make different decisions on the same case. We can not eliminate the judgment of values on a case and it is the same with judicial discretion. Law can not reach an absolute objectivity, only can it reach a relative definitude and objectivity which embodies the rationality. It is judicial...