On The Judge's Discretion Of Our Country

Judge's Discretion has long been a tradition in both China and Anglo-American legal system. Nevertheless, for a long time in history, there have been disputation and divergence towards whether judges should have the discretion, and the ways and basis of executing discretion, etc. Furthermore, there has existed debate on the collective reason of legislators and personal reason and experience of judges, aggressively making law, interpreting law and passively applying law, whether the judge's discretion is under the rule of man or law, lawmaking by legislators or by judges.Chinese legal system, along with Continental legal system and Anglo-American legal system, although they differs from each other in terms of history and features of law development, consensus about the judge's discretion has been widely recognized all over the world in that people have a better understanding of the nature and function of law and jurisdiction as the continual development of human beings'cognitive ability.Through historically exploring these traditions and comparing theories and practices in different countries or law systems, we learn that the existence of defect and loophole of law in judicial process and judicatory's intrinsic requirement for case equity and justice are the inner causes of the existence of judge's discretion, the significance is to rectify legal defect and legislative loophole at macro level, and to pursue or ensure both case equity and justice and adjudication appropriateness micro level. The exercise of which is based on the result of law findings at the beginning of judicial adjudication, and is executed through the methods or ways of discretion such as making and interpreting law by judge and pursue case equity and justice in purpose.In China, judges having discretion has basically become common a judicial status quo and herein has been agreed upon by most people in theory and practice circle, but in reality still exist lots of dispute or confusion in theory and practice due to its lack of being explicitly authorized and ruled by law. Hence, furthering the study of this issue in order to achieve a consensus and obtain unified of requirements and norms of discretion earlier is critical and important for assuring Chinese judicial integrity and law execution, judicial fairness and human rights, and advocating the rule of law. The judge's discretion in our country should be constructed in these three aspects: reasonably authenticating and constructing judge's discretion, introducing trial cases and case law mechanism, and coordinately building related judge system.