On The Proper Exercise Of Judge’s Sentencing Discretion

The problem of judge’s discretion gets into the law area of China as a hotdebate recently. This phenomenon is not accidental, but it reflects thehistorical development of the construction of legalization. With the developingof legalization, people realize not only to improve the system of law, but wealso need to rely on the discretion of judges to interpret the social value oflegalization. They would notice that granting the rational discretion of judge iseven more important than formulating large amount of laws in terms ofprotecting law. With the understanding the value of discretion of judge,discretion of judge would get more attentions as the core activity of legalizationin the area of law.Thanks to the working experiences in court, I understand the importanceof discretion of judges in terms of performing a fair justice, developing thesocial value of law and drawback of inflexible justice thoroughly, and I alsohave passion on knowing the pattern of rational and fair discretion of judge.The purpose of this paper is to analyze the basic theory of discretion of judgeand to interpret the factors and problems of discretion of judge of Chinaobjectively and thoroughly, and I would also like to discuss the fair and openlevel of discretion of judge based on the practical situation in China. This paperbegins with the practical experience and the problems of discretion of judge.And further discuss include the combining of theory and practice, at last it willconclude with my own suggestions of how to use the discretion of judge in reallife.This paper has four parts:The first part mainly introduces the overview of the discretion of the judge.Through comparative analysis of domestic and foreign scholars on thediscretion of the judge’s statement, I will summed up the generalcharacteristics of the discretion of the judge explains the understanding of this concept. Analyze the process of judge discretion range by criminal judicialpractice point of view, and then analyze exercise of the discretion to narrowthe area of coming statement.The second part focuses on the analysis of factors of the discretion ofjudges. These factors are discretionary circumstances of sentencing,guidance of criminal policy of tempering justice with mercy, and public opinionand legal literacy and the experience of a judge. The rethink and calcificationof the related factors brought from practical life will also be written on this part.The third part focuses on real problems of discretion of judges broughtfrom practice, which are the judge sentencing discretion to exercise thedifference, judge the value of the sentencing discretion and the judgesentencing discretion improper use and misuse of criminal verdict credibility isreduced.On the fourth part, I express my own suggestion of the rationalperformance and the fair and open patterns of judge’s discretion. Thesesuggestions include how to standard the discretion of judge, and how toimprove it in practice. It is also includes Under the guidance of temperingcriminal policy sentence rationalization, Improve sentencing standards toprevent the abuse of power and Improve the system of judge sentencingstandardization training. As the core of legalization, Judgers have to use theliberated and discretion to reflect the truth and integrity, to resolving socialcontradictions, to promote social harmony and stability and to judge the legaleffect and social effect of harmony.