A Study On Controlling Judicial Discretion Rationally In China

No matter whether it is in the objective reality or in the study of the law, as animportant part of the judicial powers, the judicial discretion is really a problem that weshould focus on it. The judicial discretion is the basic component in exertion of judicialpower, and will affect the final result of the legal application in the judicial practice. Theexercise of the judicial discretion is correct or not, that will relate to a series of problem,such as realizing the individual justice, procedural justice, exterminating the legal loopholeand so on. Now, the reform of judicial system in China is still going on. It is anunavoidable and realistic problem about how to standard and limit the judges’ discretionreasonably in the existing judicial environment. The article tries to study the problemcombining the general theory of the judicial discretion with the reality of our country, andfocuses on how to standard and limit the discretion in current judicial practice. The authorexpects that this paper can cause extensive discussion in the scholars. This thesis is dividedinto four parts, excepting the preface and conclusion.The first part is an overview of the judicial discretion.In this part, the authorcompares the domestic scholars with the foreign scholars about how to define the judicialdiscretion, and analyses the opinions of different schools and the argument between Hartand Dworkin.In the second part, the author clears up the history process of the judicial discretion,introduces the countries’ situation of common law system, civil law system and the China.Purposing through the comparing and analyzing the different legal culture background, itcan find some beneficial experience for the judicial discretion.The third part mainly summarizes the necessity and the value of the discretion. Itproves that the judicial discretion is objective existence for three contradictions by thelimitation of law. The judicial discretion can balance the general justice and individualjustice, coordinate the conflict between procedural justice and substantive justice, andrealize the maximization of the justice and efficiency.There are some suggestions for the judicial discretion in the fourth part. At the first,the author summarizes three problems in the judicial practice of China. At the human level,we should propel the process of the professionalization of judges. From the environment’sperspective, we should ensure the judicial independence. Most of all, we should use thecase guidance system and the legal argumentation in the judgment to limit the judicialdiscretion.