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On The Reasonable Operation Of The Judge's Discretion

Posted on:2012-07-15Degree:MasterType:Thesis
Country:ChinaCandidate:W YangFull Text:PDF
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Judge's discretion is that in the process of adjudicating cases, if the legal regulation is not clear enough or nonexistence, judges can apply the law under the value guidance of fairness, justice, and reasonable to deal with the case and its procedural issues according to the specific circumstances. This power is not absolute but relative free, and only can be applied in the legal principles and spirit of the law. Also the judge must take into account the factors such as public's reasonable expectations, unwritten rules, and social habits and so on. The judge is the subject to exercise judicial power, and discretion is the core of judicial power. As the core of judicial power, the discretion not only influences of the litigant's property, freedom and even lives, but also plays a role of guiding social behaviors and regulating social relations from the macro-social angle. Although the domestic academic community has matured to the discretion definition, but not yet got a unified point of view. In foreign countries the concept of judicial discretion is different because of their different views. The discretion of the judges has always been in the process of the development of Western laws. Anglo-American legal system countries take judicial precedent as the main principle, which provides the huge space for the judge. While the continental legal system the discretion power of modern sense roots in the establishment of the principle of free intention.The existence of judicial discretion is reasonable. The limitations of human cognitive activities determine that the discretion of judges is legal reality rather than the objective reality. The ambiguity of the legal concept provides the space of for judges to interpret the law. The value Pursuit and limitations of legislation require judge to weigh against the benefits of various methods to find the best solution in adjudicating cases. The lag of the law requires judges must adjudicate on the basis of the situation to adapt to the continuous development of the society. Besides the reasonable existence of discretion, we should also recognize that discretion is a double edged sword. Reasonable use of discretion can resolve many problems brought the legal characteristics and the development of social life. But the judicial discretion also has shortcomings of their power properties. The space of discretion may be used by judges as the arbitrary discretion, and an excuse for abuse of judicial power. It even provides a breeding ground for judicial corruption, leading to the loss of a judicial authority.With the deep-going development of China's judicial reform, the judicial discretion is gradually on the right track in the judicial practice. But it is undeniable that there are still many problems in the exercise of the judicial discretion trial because of the court system, internal procedures, and other external factors. The problems include the large interference to judges from the external environment, serious court administration of the internal work, of the arbitrary use of the discretion by presiding judge and sole judge, lack of protection of judges'position. These issues not only affect the right exercise of reasonable discretion by judges, but also to some extent delay the legal process in China. So it is necessary to reform and improve our system of discretion exercise:continue to promote judicial reform on the macro level, protect and realize judicial independence. Most countries in the world see judicature independent as the standard of country progress. "The Universal Declaration of judicial independence" and other documents of international conferences expound the judicial independence. Judicial independence has been generally admitted by the international community, so we can achieve the independence of the courts and individual judges, referring to international conventions and the experience of other countries. We can reform and improve the existing related systems in the middle view and learn from experience to construct related systems, including the judicial precedent system, the verdict explanation system, reform and improvement of the Judicial Committee, the judges' security system, the case request system and other measures. The quality of the judge is the key of the reasonable operation of the entire judicial discretion. So we must require the judges to improve their own quality at the micro level. The main content consists of cultivating the judge's judicial philosophy, improving the judge's knowledge culture, character qualities, professional ethics and other targets.
Keywords/Search Tags:discretion, rule of law, judicial independence
PDF Full Text Request
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