On The Criminal Discretion Of The Judge

As the lag, generality, ambiguity and other limitations of the law itself, these limitations inevitably leave the space of discretion for judges. The discretion is an appropriate decision-making authority on the base of a certain fact and law in the course of applying the law. Also in the field of criminal law norms, due to the general terms of criminal law, the provisions relative to determine punishment, the existence of criminal discretion is inevitable. The judge's criminal discretion is the power of appropriate decision-making according to specific facts within the law in order to achieve social fairness and justice. When there is no provision in the law or the law is flawed in the criminal trial, this discretion exists. That judges exercise discretion in criminal helps overcome criminal statute's deficiencies, promote legal development, and maintain the case justice. The socialist rule of law is gradually perfect in our country today. The issue of judge's criminal discretion abstracts more and more attention. As the criminal law reflects the coercive power of the state to maintain social relations, in terms of the criminal law statutory requirements, our law does not expressly permit judges to have the criminal discretion, but in fact our judges in the criminal case proceedings have broad discretion. However, the lack of theoretical understanding and effective system of regulation, criminal discretion is unlawful and unreasonable for a very serious problem, leading to judicial corruption and judicial arbitrariness of the authority and impartiality of justice are very serious indeed. In view of this, the paper focuses on the criminal discretion of the regulation problem.This article includes the following four aspects:The first part makes a brief introduction about the basic theory of the criminal discretion. From the development process of the discretion, I draw the concept of discretion in modern community of nations. Then the concept of discretion derives from the concept of criminal discretion, and outlines the specific features.The second part analyzes the base of existence and value of criminal discretion. From the basis of universal jurisprudence to the specific basis of criminal law, it demonstrates the necessity of existence of criminal discretion, and then confirmed its significance in criminal trials.The third part is about the principles followed by the judges when they exercise the criminal discretion. From the principle of legality of the substantive criminal law, to the principles of the Code of Criminal Procedure such as the process justice, judicial independence, distinction , this article makes a introduction.The fourth part, for the current problems of our criminal discretion, puts forward some specific proposals. Improve the criminal law, establish scientific rules of evidence, protect the accuser's right to defense, enhance the reasoning part of the criminal verdict and improve the quality, the five aspects of the criminal discretion regulate judges'criminal discretion.