The Research About The Judge’s Discretin In Fact Finding

In the fact finding, it is inevitable that the judge use discretion, which is a concrete manifestation of the judicial activism of judges in the judicial practice. The judge completes the civil cases of adoption in a serious of fact finding such as collection and providing evidence、judging the evidence ability and certificate force. We can say that the reasonable construction of the modern judicial system is inseparable from the effective play of subjective initiative of the judge, but it is also crucial to restrict the judge’s discretion effectively and to prevent the abuse of power.This article is divided into five parts.The first part discusses the basic theory of the findings of fact and discretion. It introduces the meaning and link specifically and by introducing the discretion theory, identifies the basis to exercise discretion of the judge, furthermore, Combined with the basic theory expounds the necessity of judge’s exercising the discretionIn the second part, through the analysis of the judge’s discretion in evidence collection and the allocation of the burden of proof, it expounds the judge’s awarded type discretion in the investigation and evidence collection and the judge’s negative type discretion in the allocation of the burden of proof. This paper discusses the premise and limits of the judge’s exercising power, tries to solve preliminary how to get the effective use of the discretion, at the same time, gives a reasonable control.In the third part, it preliminary analysis research on the discretion of the judge in the civil action in judging the evidence ability. This part mainly discusses the suitable mode for China’s excluding illegally evidence through the Comparison of the two excluding illegally evidence in the judge’s discretion, and analyzes the discretion of judge in the proof-losing-right and witness testimony judgment. In the proof-losing-right, the judge’s discretion mainly include includes discretion in the time limit for adducing evidence in the judge to determine the discretion of the judge and discretion in the evidence loss power relief.The testimony of witnesses in the judge discretion was discussed mainly from the determination of qualifications of a witness, the decision of the hearsay evidence, and the judgment of the written testimony.The fourth section discusses the judge’s discretion in identifying. In the premise that introduces the judge exercise discretion from the discretional evaluation of evidence in identifying the probative force, through a comparative study of civil action proof standard of Chinese mainland system and Anglo-American legal system, it analyses the discretion of proof standards, and further expounds reasonable limits of probative force discretion.In the fifth part, it discusses the current situation and the improvement of discretion in fact finding in China. First, it analyses the problems existing in the judge discretion including system building and the quality of judges, second, it discusses the perfection of the conception including improving the relevant legislation and operational mechanisms and the formation of professional judges.The innovation of this paper is that to research the judge’s discretion in detail from perspective of the civil procedure law and the micro side, to solve the problem how to seize the reasonable limits in the fact-finding from theory and then to pull into the distance of the civil procedure law of theory and judicial practice to provide the theoretical basis for the judge in the exercise of discretion in the trial of civil cases.