Research On Civil Judicial Discretion

The civil judicial discretion is the key factor in the application of civil law and a kind of specific method for civil judges to use their judicial authority as well. In the application of civil law, the judges are sure to face the choice of construction of law, conflict of laws and making up gap in law while civil law has its own credibility and incredibility, prediction and un-prediction, which means the applied law will be used at the same time with the judges' judicial discretion. Now China is in the reform changing period in which the development of market economy is combining with the foreign economy. So there are a lot of new civil cases. In order to make the law just and efficient, it is necessary for judges to have civil judicial discretion.The civil judicial discretion in the essay is that judges have the considerable and decisive right about two or more choices in the civil law application according to the law authority and combined with concrete case and within the reasonable range. It can be seen from the development of both foreign and Chinese civil judicial discretion especially that of China that civil judicial authority can't exist without civil judicial discretion. The publication of many law conflicts and disputed cases is the result of civil judicial discretion which has been used actively by Chinese judges. When civil judicial discretion is used the judges should pay attention to the combination between law inference, conflict of laws, discovery of law, benefit measurement and judicial decision.The civil judicial discretion exists with judicial authority. The description of laws and regulations has its ambiguity, backward of adjusting efficiency and law makers' confine. Because of its defect, the value of judicial discretion is quite necessary. Construction of law is the access of dealing with law confine and using the law correctly but construction of law itself needs constructing and judges' concrete decision as well as judicial discretion. Furthermore, enlarging civil judicial discretion is the demand of civil judicial authority of our country and attitude of civil law making as well. The reasonable using of civil judicial discretion is of primary importance. So studying western countries' relative theories and their confined factors can be applied to adjust using and supervising rules of our civil judicial discretion.From the assess and analysis of the using of using civil judicial discretion and single case in our country, the problem can be found in it as the following: lacking definite regulation in law; lacking specific guide in the action of administration of justice; lacking publicity in law using process; some of the low quality judges' un-proper using of civil judicial discretion; the disturbance of stand-alone using civil judicial discretion from the out environment and so on.To ensure judges to use civil judicial discretion properly and prevent it from un-proper using, reasonable system of civil judicial discretion should be set in our country. On the basis that judges' judicial discretion is acknowledged to be legal and respect their independent and guarantee their reasonable action, they are authorized in civil law making, just law process and law independent. In order to perfect the laws and regulations and put the construction of law and judicial authority in action, the rule of good public custom should be used reasonably. The limitation of judges' using civil judicial authority should be in accordance with law process. The independence administration of justice ensures the system of judges' independence and carrying out judicial discretion. The judges' independence in our country should be that of collegial bench and sole-judge bench, not the independence of some single judge. In order to ensure the judge bring to trial independently and prevent civil judicial discretion from un-proper using, the out environment of judge' independent trial and inner reform should be strengthened and the relative supervising system should be perfected.