The Use Of The Discretion Of The Judge And Norms,

Discretion of a judge refers to the power by which in trying a case he can make an independent determination or judgment regarding substantive and procedural matters under the guidance of justice, fairness, accuracy and reasonableness. Judge's discretion is the embodiment of judicial independence and a key part of the judicial activities. It is very important to preserve and ensure such discretion which can promote just judicial process and realize the rule of law in our country.This paper first defines the concept of the discretion and narrates the scope and four features of the discretion. A judge has a duty to exercise discretion independently with a clear goal in his mind and taking into consideration of all elements in play. The paper also summarizes all kinds of arguments about judge's discretion and points out that the core issue of the debate between the idealism and empiricism is whether a judge should have discretion. This debate reflects the differences of the Civil Law and Common Law methodologies, which provides a base for us to analyze the differences of two judicial models and status of judges.By contrast, the theory of relative discretion tries to avoid the paradoxes mentioned above and seeks a balance between the stability of law and the changes of real life. The author applies this balance to approach the issue of discretion and application of laws. Through the analyses of individual judge's own values, the paper provides a basic theory explaining to what extent judge's discretion is justifiable and necessary. Meanwhile, the author believes that judge's discretion does not only have theoretical base, but also is practically necessary due to the fact that judges need to take initiative in trying case and the circumstances of cases require him to solve the disputes or make determination. So-called "the law itself can solve the dispute and realize justice" is no less than a myth. As an old saying indicates, "law itself can not travel far". Law must depend upon human being to reach its goal. Therefore, any application of law could not be without judge's personal involvement. We must recognize this before any serious study of discretion.Many disagree on the scope of discretion. This paper looks at this issue throughthe comparative lenses and finds that there are huge discrepancies between the legal methodologies and fact-findings of the judges from two major different legal families, therefore, exercising discretion occurs frequently throughout the judicial activities. Judges can exercise discretion within the legal boundary and beyond legal prescription as well. The latter is the phenomenon of so-called "judge making law". For instance, the judges of Common Law country can create "equity law". Judge's discretion is a part of judicial power therefore belongs to the public power, therefore, should be confined by the principles of legality, fairness, justice, strictly sticking to the fact, and self-refraining. Only adhering to the above principles, the discretion can be exercised appropriately.In reviewing the current system of China, this paper finds that Chinese judges have either been seriously affected, restricted, or erred in exercising discretion due to all different factors including institutional failures and lack of other relevant systems in place. These have caused social injustices and abuse of judicial power, eventually infringed on the rights of parties and hurt confidence of the general public in the legal system.Thus, the paper proposes that the discretion be regulated in a reasonable way to ensure judges to fully exercise their discretion on the one hand and restrict judges from abusing their discretion on the other. There is a need to guarantee the independence of the judiciary and perfect the management of the internal operation of the courts. Meanwhile, there must be certain rules to guide judges to exercise discretion appropriately, and establish a mechanism to supervise or monitor the behaviors of judges. Nevertheless, putting reasonable restrictions on judge's discretion will by no means return to the old situation that judges have little discretion. The paper reiterates that it is imperative to give full play to the judge's function and have them exercise their duties creatively, so to further the development of the legal system and achieve that the judicial activities can contribute the rule of law as well as the legislature.