| Mencius said,"The law is not sufficient on its own, but good enough." reflect theimportance of people’s initiative on legal implementation. The court is the last defenseof social justice, judge as the line ’s goalkeeper, the judge must be loyal to the law,perform their duties according to law, but the law has limitations, legal conflict andvulnerabilities such as inherent defects,it is decided that judge strictly apply to lawwould be difficult to avoid unfair judicature, in order to realize social justice, ensurejudicial impartiality, judicial discretion must exist. Discretion is inevitable, but thejudges have individual differences and power has naturally expanded, and the effcts ofcourt system and construction of power supervision are not regular and so on, thejudge discretion would be abused, has the risk of arbitrary and do as their pleases, weneed to regularize the judicial discretion. This paper is divided into three chapters, thefirst chapter is the general introduction of the judge’s right of discretion.the chapteranalyse the attitudes about different people of whether or no judges would enjoy theright of discretion and then put forward that judges would enjoy the right ofdiscretion; summarizing the connotation of the discretion through domestic andforeign scholars’ different views on the discretion; and further understanding judicialdiscretion by elaborating the peculiarity of it. The second chapter analyzes thenecessity and the potential problems in the judicial practice of the judicial discretion.By interpreting the function of overcoming the legal limitations,coordinating theconflict of legal value, to highlight the value and necessity of judicial discretion; Through analyzing the questions of the criterion of the judicial discretion is hard to beunified and Jurisdiction has localized and administrative tendency etc, to clarify thepotential problems of the judicial discretion. The third chapter is the focus of thispaper, standardizing judicial discretion. This chapter is divided into three parts, Tobegin with judge management system, through the reforming of organization system,outlay guarantee system, identity safeguard structure and judge training setup etc, toensure the right of discretion can be exercised independently and justifiably. Thesecond part standardize judicial discretion for improving the supervisory system bystandardizing NPC’s right of supervision, perfecting news legislation andstrengthening public trial system etc. And then the judicial discretion can be operatedrightfully. The last part of this regulation depends on law method, by expounding therelation between law method and judicial discretion, analyzing the restricted effect oflaw method on judicial discretion, and showing the situation of the use of law methodin judicial practice, and then raising up by strengthening judges＇consciousness ofusing law method to impel the judicial discretion be performed rightfully andrationally. |
