On Rationality And Legitimacy Of The Judicial Discretion

How to treat the judicial discretion is an important issue considers the background of the ongoing reform in the trial system area in China . In my studying , the content of judicial discretion is the departure point, the related theories are analysed systematically with the tool of comparative theory . In China in the trail practice , my view is that judges definitely have the discretion . Meanwhile , both aspects of the meaning are analysed deeply . It is the precondition and foundation for us to study the rationality and the legitimacy of the judicial discretion .The opinions about the existence of the judicial discretion vary from here to there . The paper points the existence and development of the judicial discretion are based on the rationality by the rigorous logistic analysis . The rationality is analysed systematically from angle of value and judgement practice . In my opinion , the existence and exertion of the judicial discretion is the necessary result of people pursueing value and logistic practice . The rationality runs through the practice of the judicial discretion . At the same time , it is not enough that the judicial discretion is accordding to its rationality merely . All parts of the judicial discretion must consist with legal mentality and principle . The legitimacy is also the requirement of judicial discretion .The last part points that the rationality and the legitimacy are consolidated in practice . The legitimacy embodies the rationality , the rationality is the essential content of the legitimacy . By the theory and method of Marxism , the rationality and the legitimacy of the judicial discretion is embodied in the judicial practice .