On Judge's Discretion Of Civil Judgment

Judge's discretion is judge's power that the judge confirms fact extenuatoryly or makes a proper choose in several legal solving methods during the application of law. From its characteristics we can see that judge's discretion is come from the process of litigation and is a kind of judicial power given by law, as well as has the effectiveness of priority. During the procedure of civil trial, the existence of judge's discretion is external and necessary. The necessarity of judge's discretion is decided by indeterminacy of civil law's language, un-reversion of objectivity and imperfection of law, the civil discretion of judge is the reflection of judicial initiative in civil trial, meanwhile, the legal role and occupation ethic of judges in civil trial also make it is possible to get this discretion. The civil discretion of judges is different with criminal discretion in the aspects of foundation basis, legal function, freedom degree, and application purpose. Under present legal system of civil evidence in our country, discretion of judicial staff members has many shortcomings in recognizing fact of cases and applying law, so it is necessary to rule for it. How to provide for civil discretion of judges on procedure? The theories of Herbert Max provided theory resources for restricting judge discretion by procedure. The theories of Niklas Luhmann provided a neutral and convenient weapon in removing the shortcomings of substantive law. The paper suggested improving civil discretion of judge in our country by the way of establishing initiative judicial system, adopting the litigation system of party, developing the system of prejudication, setting up public system for the mental impression process, reasonable explanation system of judgment, and establishing procedural judge system.