On The Discretion And Regulation Of The Criminal System

In the field of criminal law, every country's criminal law system will give judges the left room for discretion. This is not only technically impossible in law but also unsuitable to legal theory, the discretion exercised by judges will overcome the shortcoming of criminal statute, safeguard the case of justice, promote the legal development, and converge the objective reality with the established legal norms. In our country, the judge's discretion gets more and more attention. On the one hand, our law does not empower judges to have criminal discretion; On the other hand, according to the characteristics of the criminal laws and regulations, China's judges in fact have broad discretion. Moreover, because of lack of the theoretical knowledge and regulation, the phenomenon of unlawful and unreasonable application of criminal discretion becomes a very serious problem. So it resulted in a judicial corruption and the arbitrary of justice, and had a very bad effect on the legal authority and the legal system. In view of this, people in jurisprudence and legal theory attempt to explore the reform of discretion theatrically and practically, and achieved a lot. In this thesis, I base on the origin of discretion, adopt the different points of view from the domestic scholars, explain the connotation and denotation of the discretion, and finally give the concept of discretion. I emphasis the inevitability and significance of criminal discretion from three aspects: the limitations of the law, the legal value of conflict and the characteristics of the criminal law. According to the status quo of application of discretion, I focus on the solutions from these four aspects to make the criminal discretion better, first is to raise the quality of the overall judges, second is to improve the criminal laws and regulations, third is to strengthen the control of the judicial process, forth is to build the monitoring mechanism.