On The Judges Discretion

Judicial discretion is the important constituent of the jurisdiction, affects the government bylaw advancement in the certain degree, it is the question which is worth emphatically discussing n the real life or in the fundamental research. Judicial discretion is the power to makes fair decision when judge comes across the difficult case which is unable to be suitable the ready-made legal rule or to face many conflicted legal rule. The modern society unceasingly strengthens to the government by law request, it urges the people unceasingly to promote to the legal society control function anticipation. But as a result of the legal limitation, the law cannot bring all reasonable anticipating to the people. Therefore, took the legal limited supplement and the relief, judicial discretion becomes the essential item of the judicial process. But person's characteristic and the characteristic of authority decides have the risk be abused. In our country, the question of judicial discretion has not obtained the attention by the academic circles and the government, it is not having the detailed stipulation in theory. On the other hand, in the actual administration of justice the judge in china grasps more space of judicial discretion than the judge in western law consummation country, often has the event occurrence which abuses the discretion, even directly causes judicial corruption. Based on situation above, it is necessary to strengthen the theory research of judicial discretion, to analyze the question which appears in the process in our country, to put forward the reasonable operation proposal, for caused the behavior of judicial discretion be correct. This article divides into three parts:The first part is the outline of judicial discretion. This part first through makes the word meaning analysis to English word Judicial Discretion, obtains probably define of judicial discretion. After that elaborated the historical development rule of judicial discretion and has pointed out the difference of developing process between the English America legal system and the mainland legal system. Through introduced and compared the western legal principle theory of law educational world different theory to advocate, finally obtains judge freely to decide after deliberation the power several attributes.The second part is the evaluation of judicial discretion in our country present situation. This part first introduced the factors concerned judge discretion in our country traditional culture thought, afterwards elaborated the present in our country existence question concerned judge discretion which conflict between the neglect in theory or in legislation and the wrong use in real life massive. After that the analysis pointed out judicial discretion has takes the fill law the limitation, the foundation harmonious law order, the promotion law development value, simultaneously also has the flaw which the general authority all has, we must acknowledge its existence, and reasonable utilization it.The third part is the reasonable operation of judicial discretion. This part has designed the utilization reasonable mechanism of judicial discretion. First we proposed the utilization principle when judge use the discretion, after that separately constructed in legal and the non- legal stratification plane has constructed the control mechanism of judicial discretion. We proposes in the legal control with the legislation control and the judicial process control, in the non- legal control judicial discretion proposed establishment reasonable judge the system and reasonably controls using the public opinion.