On Discretion In The Criminal Trial

Affected by many factors, the judge has the discretion in a criminal trial. discretion in a criminal trial means that according to the principles of fairness and justice and the the principles provided by the law, a judge owes the power of free choice based on the basic facts on the case, applicable law,and results of the referee in the trial of the cases. if such a power is exercise without confined, it will lead to a variety of adverse results. Therefore, how to exercise discretion in criminal properly or how to control the abuse of discretion in a criminal trial has become worthy of study. For the study of discretion in the criminal trial, we should follow the basic logic to study from theory to practice. First this paper answer the existence of knowledge and practical significance of the discretion. Then, we will analyse the proper exercise of discretion. In the next part, I'll give you an introduction of the performance and hazards of the abuse of discretion. At last, suggested solutions are proposed to control the abuse of discretion. according to this logic, this paper includes the following four parts.The first part is the basic introduction to the theory. discretion and discretion in the criminal trials are defined. This prepares theoretical groundwork for the corresponding study of the full text. We restricts the concept of discretion in the criminal trials as the free discretion of a judge, despite that of prosecutors,or polices in criminal cases discretion.The second part studies the basis and significance of the existence of discretion in the criminal trial. As a result of limitations of the statute law, legal uncertainty and our authorized interpretation of "Criminal Law", it is of necessity and rationality of the existence of criminal discretion. discretion in criminal trial will help to overcome the limitations of statute law. Otherwise, it would help to increase the flexibility of justice, the judge to balance the various interests, and to achieve justice and form professional judges in the end.The third part is the the proper exercise of discretion of a criminal trial. exercise of Criminal discretion should follow the legitimacy, purpose and rationality principle. Discretion should be exercised properly in three aspects, namely, the use of the evidence, facts of the case and the law application. For external factors that influence the exercise of discretion in criminal cases, should also be concerned, for instance, the impact of the network and public opinion, the administration of the judicial system and the intervention of administrative and the NPC in judicial cases.The fourth part is the abuse and control of discretion in the criminal trials. abuse of discretion exhibites as wrong motives, the penalty is fair and delaying the trial shows. Thus, it endangers the interests of main parties, damages the authority of judicial cases. It also undermining the equality principle of everyone before the law. To control the abuse, we should pay attention to the following two aspects----cognizing the facts and applicating the law.