Research On The Judge's Discretion In Criminal Judicial Practice

Judge's discretion in criminal judicial practice is prevalent in all countries; in what way the judge will exercise its discretion in criminal case in judicial practice have different effects. Because of system design problems or because of their quality of judges, in the process of exercise of discretion, the judge's discretionary power is often abused, resulting in increasingly serious judicial corruption, judicial random, as well as damage to the public interest, and undermining the authority of legal ruling . Based on the prevailing problems, scholars began to pay attention to the criminal discretion as well as the exercise of judge's discretion, on which they conducted a great amount of analysis. In view of the importance in the academic community as well as the important status among practitioners, the author of the paper determines to conduct further research to explore the judge's criminal discretion. On the basis of profound research efforts of scholars, the author puts forward her own ideas and suggestions on the subject, in the hope of solutions to old problems from new points of view. This paper uses theoretical methods of comparative analysis. In a variety of comparison of concepts; development and changes of the discretion in ancient and modern society, we found the legitimacy and rationality of criminal discretion. By analyzing and comparing existing problems, practical trials and their errors, made theoretical suggests of binding norms on criminal discretion. As a result the criminal discretion will not only be lawfully and reasonably used, but also be fully utilized; the judicial practice of our country will further towards the order and standardization; the country's legal system will be much more uniformous, the judges will be much more like representatives of the equity, equality and justice.Full-text is composed of four parts.The first part makes the related concepts clarified and clear. It mainly defines the concept of criminal discretion, and distinguishes the judge's discretion from other subjects who also exercise the power of criminal discretion; And then it mainly introduce the historical change and development of the criminal discretion.The second part is the reasonability of criminal discretion. Legal abstraction and uncertainties determine the reasonability of criminal discretion; the unity of general justice and individual justice determines reasonability of criminal discretion; development of the law also requires judges to exercise criminal discretion in practice. Part three discusses the irrationality of criminal discretion. It touches on the wide spreading abuse of the criminal discretion, judicial corruption and judicial random phenomenon. This enables scholars have seriously thinking how to properly exercise judge's criminal discretion.Part four tries to recommend establishing related systems making sure the proper exercise of judge's criminal discretion. System such as compile materials of typical criminal cases for judges at various levels; fully state reasons for the sentence in criminal judgments; strengthen the media supervision and training to enhance the quality of judges,etc.,...