The Judge Discretion On Civil Litigation

Whichever power system will give the subject certain space to think and decide independently when dealing with the specific problem, so in the application of laws, the judge has always been authorized the power to do free evaluation or make independent decision, this is called the Judicial Discretion. We can find its common sense holded by the Chinese and overseas scholars: discretion is the judge's power of free choice and independent judgment. Furthermore, as the basic way of the exertion of trial power, judges'discretion will reflect in two weak senses and in a strong sense.Discretion is as a symbol of the hard choice between rule by law and rule by person. Its function is to overcome the limitation of laws and settling the complicated disputes, promoting the development of legislation and striking the balance between general justice and individual justice. It has been long debated whether discretion a friend or a foe of jurisdiction, especially in recent time, the question on how to limit the operation of discretion has become the focus of Judicial Reform. But until now most research on the subject are theoretic, so there is still no good guidance to the judicial practice.Therefore, this dissertation tried to review judge's discretion dynamically through the syllogism reasoning in civil litigation, which includes facts validation and laws application and verdict. Then, to study the limitation of the operation of discretion, this article reached the highlight of procedural safeguard, referring to the purpose of civil action, the procedural rights of both parties (especially the principle of debate and the principle of disposal) and finally the duties of the judge. After all these discussions, a final conclusion has been reached: Judge's Discretion is indispensable in the application of laws, it is the basic showing of the trial power, we can not find another better way to settle disputes and realize the value of the law instead of offering the judge discretion to try the case. So it is much more important to build a proper operation system of discretion, and the judge will then play more active role in realizing the justice.This dissertation is in consistence of four parts.In the first part, it starts with opening out the connotation of the power of judge discretion, which is the independent power to think and choose and decide freely. It sets up a premise and foundation for the later study. Then based on the differentiation of weak discretion and strong discretion, this article sums up the characters of the discretion, including dynamic role, public power generality, relative freedom and flexible.In the second part, it focuses our attention on the scope and reflection of discretion in civil litigation. The process of litigation in a way is a process of syllogism reasoning, the exertion of discretion embodies not only by abiding the existing regulars but also at any phase of the trial, in other words, when validate facts, the judge use discretion to evaluate and analyze the evidence, when apply laws, they interpret and explain the law or even make new rules. And also discretion means the judge have power to control the process after the filing of case, to explain the rights during the hearings, the independent determination power in the general judgment. Finally, the author analyze the legislative function of discretion on basis of the difference in two law systems.The third part focuses on the limitation of discretion. Because the being of it will lead to be abused, and will then trench the right of the part concerned and imperil the order of this society, it is necessary for us to define the borderline of the power and to restrict its exertion, in which civil procedure has natural function. For example, the use of discretion cannot constitute an infringement on procedural rights of any of the parties.In the last part, by reviewing the status quo in our country, we can find an embarrassed situation when facing discretion, on one hand, it becomes a general trend of extending the scope of the discretion in practice which required by the social changes, and on the other hand, because of the creed of strict principle, we denied the existence of judge's discretion. Besides, in the social transformation period, there are many obstacles interfering the exertion of discretion, including impropriety of judicial procedure, absence of guiding principles, deficiency of legal system, incompetent professional qualifications of judges. With the consideration of the plight of judges using discretion, the author offer the following advise, e.g. to improve legislation, or to improve judge's professional qualities, strengthen responsibility as a medial and impartial and rationale person in trial; to build parallel structure of design of civil litigation, given substantial protection of parties'procedural rights, especially the right to debate and the right to dispose. Also, independent jurisdiction can provide the external guarantee of proper exertion of discretion.