On The Discretion Of The Judge

The author starts his analysis with the argument between Hart and Dworkin on judge's discretion. On the foundation of analyzing other academic and practical viewpoints of Chinese and foreign country attached with their respective contribution and insufficient, the author proposed the accurate define of judge's discretion. The author's opinion is that we should size nine dimensions of judge's discretion from subject, object, essence, form, boundary, goal, situation, opportunity and potency . Thus the author draws his conclusion: judge's discretion refers to the considered best final decision chosen from a number of statutory grounds which is not the only correct solution about the issues of legal entities or procedures in the entire course of the proceedings, so that various interests and values can be balanced, a reasonable judgment can be made and the specific powers of law and regulations dealing with a case can be realized. The author also makes a brief analysis of the meaning of judge's discretion. In addition to its significance of overcoming the limitations of interpretation methods, the judge's discretion can also balance fairness and efficiency, order and justice, freedom and legal equality of all values conflict. Furthermore, it can strike a balance between law and policy, law and ethics, and the conflict between legal factors and factors outside law , such as dispute resolution and rule of law. Thereafter, the author defined will-autonomy as the nature of judge's discretion from the principle of private law , ie, will-autonomy is that when a judge exercises his discretion, he should subject only to the law, own the rights to choose a proposal solutions, suppress any outside interference, and bear responsibility for the results of discretion. Then the author do a further analysis on the meaning and origin of will-autonomy. By analyzing the position of will-autonomy in the various nature of discretion and the determining factor of will-autonomy, the author puts forward his opinion that will-autonomy is the essence of judge's discretion. To realize judge's will-autonomy as the nature of discretion, we should construct operational mechanism of judge's will-autonomy from three bound , ie, recognize, respect and restrain the autonomy .A preliminary analysis of particular problems on exercising judge's discretion is now also made . Judge's discretion is a "double-edged sword" to judge's interpretation of...