On The Legitimate Exertion Of Judge's Discretion

As an important legal institution in civil jurisdiction system, Judge's discretion plays a vital role in legal research as well as the civil trial system. The proper and legitimate exertion of judge's discretion has a particular and indispensable effect on Chinese legal system. On the other hand, while the judge's discretion is being applied widely in the acting legal system of China, there are many shortcomings both in the legal research as well as in the civil litigation system at present. Based upon the importance above, it is widely hoped that the research about the judge's discretion in civil jurisdiction should step forward and get solid and pragmatic results in order to push the judicial reform to an advanced phase at present. Based on the reality in Chinese legal system as well as dealing with the conception from professional and technical perspectives, such as conception analysis and comparative analysis and so on, the article deals with the conception of judge's discretion and the abstract bases of the legal system as well as the vital conditions inside. The articles aims at outlining the basic theories about the judge's discretion and giving the suggestions about how to improve the regulations about the legal institution better so as to strengthen the legislation and regulations about the theme. Besides of the preface and the conclusions, this article consists of three paragraphs, as follows:Chapter One tells the legal conception and traits of judge's discretion. From the perspectives of conception analysis and comparative analysis, it outlines the discretion in civil jurisdiction acting in China. It also stresses the legal basis and conditions of this conception when applied in specified situations.Chapter Two is about all kinds of elements of legislative field and judicial field as well as the limitations stemming from the judges' own, which are playing negative roles in Chinese legal system when it comes to the problem of discretion. This paragraph aims at laying the foundation for the further research about the suggestions put forwards in the next part of the article.Chapter Three makes comments about the systems acting at present, according to the analysis above, especially putting forwards some straightforward suggestions aiming at promoting the application of judge's discretion more legally and widely with public faith. The author stresses that we must promote the civil legislation in order to build the uniform system about the civil trial, as well as pushing reform about the case-law system of Chinese characters basing on the mature experiences of Case-law system from foreign countries. At last, it is useful to change the system of choosing judges as well as the supervision system over the judges and the discretion so as to make this legal institution function better.