On The Criminal Judges Discretion

Discretion is the power that in the judicial process, the judiciary are entitled to interpret, apply law independently within certain extent, and make the judicial decision according to the facts and evidence available to the judiciary, in order to achieve judicial goals and maintain judicial justice. Generally, it is composed of two categories: criminal discretion and civil discretion. The institutional basis of civil discretion lies in the fundamental principle of civil law; that is, the independence of wills. As the main body of private law, the civil law is employed to protect the wills of the parties, which have the distinct feature of arbitrariness. The arbitrariness is also the reason why a great number of flexible provisions are written in the civil law. For the judiciary, these provisions actually authorize them to exercise the statutory discretion. Therefore, the civil discretion is authorized by the explicit prescriptions of the law. By contrast, under the consideration of statutory requirement of criminal law, criminal discretion can not be expressed explicitly, although the judiciary inescapably employs the discretion in the criminal judicial process. This fact raises the considerable controversy among the junsprudential circle and shows the reason why the criminal discretion becomes the focal point of this paper. The structure of this paper is expressed by four chapters, in addition to the introduction and the conclusions.IntroductionTry to describe the theoretical and practical meanings of the research on the criminal discretion through categorizing the provisions of criminal law.Chapter One Concept of the Criminal DiscretionCriminal discretion means the power that in the judicial process, the judiciary selectively apply the law and tackle the cases fairly within the scope and range of the provisions of law, under the principle of "it is not crime that France has not expressed regulations". Not only is it embodied in the power that the judiciary can cope with the respective case in broader scopes, but also in the judgment of factsand the acceptance to the evidence. It has the following legal characteristics: first, criminal discretion is generated during the criminal trial procedure. Second, criminal discretion intrinsically is one kind of judiciary rights. Third, criminal discretion represents the judiciary wills, not the individual will. And fourth, criminal discretion is a judiciary power with certain limitation.Chapter Two Jurisprudential Basis of the Criminal DiscretionThe jurisprudential basis of the criminal discretion contains the following aspects: 1. The goals of legal system-equity and justice. 2. The judicial decision-creative application of law. 3. The value selection of law-breakthrough the limitation of statute law. 4. The integrity and individual-the speciality of criminal law.Chapter Three The Exercise of Criminal DiscretionCriminal discretion does not necessarily mean that the judiciary can use their power at will; rather, in order to accomplish the justice of criminal law, the judiciary should be extremely cautious when exercising criminal discretion, with the good will and carrying out necessary notices. The exercise of criminal discretion exists at two stages: one is at the stage of ascertaining the facts; the other is at the stage of applying the law.Chapter Four The Restriction of the Criminal DiscretionExpound the necessity of constraining the exercise of criminal discretion through the §tudy on the inherent defect of criminal discretion and current restrictions stipulated by the law.Delineate detailed how to limit the exercise of criminal discretion procedurally, substantially, and institutionally.Chapter Three and Chapter Four are the primary content of this paper.ConclusionsSummarize the main points of this paper.