On The Discretion Of Judges In Civil Litigation

This dissertation has analyzed Judge Discretion on civil action, and tries tosolve three problems——Should the judges wield the power of discretion? Whenthe judges execute the power? And is there any rule that the judges ought to follow when they do it? With the three problems, the dissertation has three parts.The first part tries to discuss the necessity of Judge Discretion. The conception of Judge Discretion can be defined by broad sense and also by narrow sense. By broad sense, Judge discretion includes judges all open judgments and decisions when they deal with actions. However, by narrow sense, Judge discretion is justthe activity——when law is not exact, the judge complements and modifies thelaw, and then bases that to decide the action. The discretion by broad sense considered all things of civil action, but it is too broad to make qualitative analysis. So, what the dissertation discussed is only the discretion by narrow sense. After explained the conception of Judge Discretion, this part also characterized the courses of discretion among civil action, criminal action and administration. This part didn't enumerate reasons of Judge Discretion, but described the historical discussion on the problem to draw a profound conclusion. In the course of history, sometimes the Judge Discretion was for, and sometimes it was against. These phenomena had their special background reasons. This part put these contrarypoints of view in given times of history, and found the rule——when lay systemwas rigorous and thorough, the extent of discretion was limited, and when social realism was complicated and incompatible, the extent of discretion was enlarged. Law is impossibly as accurate as formula of natural science. The formula even can't generalize all things, so law can't dope out any instances of future. The aim of the first part is to find the necessity of Judge Discretion by backward looking of the history, and offer a prudential idea to the scope and bound of Judge Discretion. The second part tries to discuss the scope of Judge Discretion. Namely, when the judges execute the power? With the conception of Judge Discretion by narrow sense, this part argued the states of discretion in inferring substantial law, finding facts and applying procedural law. This part explained the reason why the dissertation separated Judge Discretion from judges other open judgments anddecisions when they deal with actions. Judge Discretion not only relates to one action, but also forms rules, so it will affect the judgments of similar actions in the future, viz. the realization of pervasive justice. On the contrary, judges other open judgments and decisions merely affect one action. With the above idea, the dissertation considered that Judge Discretion works when substantial law is blank, blurring, and inimical. It works also when distributive rule of the burden of proof is lack, and when procedural law grants the judges to decide. That is to say, Judge Discretion works only when rules are not exact It doesn't include judges all open judgments and decisions. For the sake of showing the idea, this part analyzed the unlikeness between Judge Discretion and Free proof specially.The third part tries to discuss the bound of Judge Discretion. Ihis part has four items: the elements of Judge Discretion, the limit of Judge Discretion, the generic ways of Judge Discretion and form of Judge Discretion. Hie first, the deference to procedure and ideas of civil litigation is the elements of Judge Discretion. The most important contents of the elements are the principle of debate and the principle of disposal. The principle of debate limits the judge's arbitrariness in inferring substantial law and finding facts, and the principle of disposal limits the judge's arbitrariness in applying procedural law, so they are the elements of Judge Discretion. The second, Judge Discretion works only when law is not exact, but can't violate the law, otherwise it is not legitimate. If discretion violates the law, it will be the disharmony of existent law system. Judge Discretion can form rule to similar actions in the future, so the disharmony will cause a vicious circle and die out the authority of law. The third, although the results of Judge Discretion are different by different judges, there are the generic ways can be summarized and be agreed When law is not exact, the first things that judges may think over are the principle of law or even policy, which can be taken as the groundwork of discretion. If the judges lose the struggle, they will take an ulterior step to pursuethe real ideas of legislators------they find other provisions to similar things in thelaw, and conjecture how the legislators will think about this things. When they still can't decide through these above ways, the judges will turn to society to cite custom, people's ideas and theories as the reasons of judgments. The last, there is not an exclusive standard that can estimate whether the result of discretion iscorrect We may think the opinion of most people as the standard of decision, but we can't deny that less people grasp the truth. There is not an exclusive standard toJudge Discretion, so we must use a formal way------publication------to amend it.Publication exposes discretion to view of public, subject discretion to discussion of people and test of social life. The correct will be developed, and the false will be modified.