On The Discretion Of Judges And It’s Regulation

Equity and justice are eternal pursuit of mankind and the eternal theme of the judicial. With the constant improvement of China’s socialist legal system, the scope of the legal regulation of social life is expanding. And our social life is well organized under the regularity of the law. But, a complete legal has its loopholes. The development of the law cannot always keep up with the development of society. The law can not cover all aspects of our life. When the legal loophole appears and the legal regulation blurs, it must be with the hand of the judge to resolve the legal limitations. The judge has the discretion in the course of the administration of justice in the common law countries is an indisputable fact. No matter the famous jurist or a grand justice raise his own theory on the discretion of the judge. These theories provide a solid foundation for the existence of the judge’s discretion. The discretion of the judge in the common law has the free grown soil for itself. By comparison, in the civil law countries, the development of the judge’s discretion is full of frustrations. With the influence of different philosophy and the different comprehension of human nature, the development of the judge’s discretion in the civil law is inferior by comparison with the civil law. Some scholars are strongly against to endow the judge with discretion, on account of the high trust of lawmakers and maintaining the stability of the law. And they are even afraid that, if given the judge enough discretion, there will be an unmanageable situation. And the judge will use their power at random. However, the development of the legal history proves that, so long as the legal limitations exists, we must admit the existence of the discretion of the judge. Our country is carrying out the socialist legal system, but our legal system and legal concept are from the civil law. Under the influence of that, our view on discretion of the judge is quite similar to the civil law. In order to ensure that the judge executes of power properly and to avoid the abuse of power, it is necessary to research on the scope, principles and methods of our judges discretion, and then implement a reasonable regulation, so as to achieve the relatively united of the referee standard, which is an important thesis that need to be solved in both the theory and the practice field.