Research On The Exercise Of Criminal Discretion Of The Judge

In recent years, the reform of the judicial system in our country under the rule oflaw was speeding up gradually in the process of social construction, because thejudge’s criminal discretion is related to the life and health of the parties and thepersonal freedom rights,so more and more it is obtaining attention. Judge, however,when the referee every case can’t be find the corresponding law and clear rules, incase some plot no accurate grasp of the basis, the phenomenon such as abuse ofdiscretion. Laws and regulations has its own stability at the same time, relative to thedevelopment of the social reality sometimes highlights the lag, it is given at thediscretion of the judge law of objective factors; Complex and changeable social life,which can not be demanding lawmakers had made the law, it is the necessary factorof the judge discretion exists.The current law to the power of discretion of the judge’s no correspondingprovisions in China. There is no corresponding explicitly stipulated in the constitution,the rights and obligations in the judges to judge rules did not involve the judge hasdiscretion in their performance of duties. But in fact, the law still leaves larger spacegives the judges discretion rights in order to give appropriate processing. In thespecific provisions of criminal law provides for all types of crime punishment, itsspace is very big, it make the exercise of the judge’s discretion has a reasonable basis.Discretion improper exercise leads to different court, and even the same court judgeon criminal facts, circumstances, and so on and so forth are the same or similarcircumstances, the decision results have bigger difference, this is the problems in theprocess of exercise of discretion to reflect reality. This paper will be divided into threeparts:The first part of the judge’s criminal discretion overview. Expounds the basicconcept of judge’s criminal discretion, characteristics, scope and exercise of generalcondition. The rule of law environment, discretion is inevitably a kind of constrained discretion. Judge’s criminal discretion is clearly judges have the power to act based ontheir own rational judgment, its choice to judge certain decisions, at the same time,the choice is not freely, usually subject to certain rules and principles of constraints.Discretion is the nature of the judge in the process of examining the criminal factsand judge cases subjective initiative, restricted by rational, can’t completely accordingto his will, in case of any deal with the results, but should be the pursuit of the valueconcept of law and judicial activities. And illustrates the judge’s criminal discretion infact and legal exercise space, as well as the general condition under the current legalenvironment of exercise. The exercise of discretion must be appropriate andreasonable, whether the judge to exercise the power justified, should be based on therequirement of social equity and justice.The second part of the judge’s criminal discretion to exercise the problems thatexist in the process. As the rule of law is perfect, the exercise of criminal judgediscretion also gradually standard, but there are still a problem to be solved to: first ofall reflected in the current our country legal system is not sound, the concept of fuzzyexcessive, excessive penalty discretion, discretion to exercise the boundary is notclear; Secondly embody in ineffective supervision discretion space is large, systemlack not easy, internal supervision non-existing, passive supervision tend to causemalicious speculation; Again in the current judicial system on the exercise ofdiscretion; Finally reflected in the impact on the discretion of the individual factors,the performance of individual differences in the specific case in connection withdifferent sentence, individual judges quality is low.The third part of the reasonable exercise of criminal discretion of thinking. Thispart expounds specification the discretion of the judge, not limit are not allowed freediscretion, and to limit all the irrational discretion. Correct exercise of discretion, cannot only overcome the limitations of law itself, but also can control the trial process,individual justice. At present in the academia and practice is a topic of commonconcern and study is how to realize the reasonable exercise of judge’s criminaldiscretion. This part of the present situation of legal construction in China, in view of the judge in criminal discretion to exercise the existing problems, and put forwardreasonable discretion to exercise the basic train of thought: the first is put forward toperfect criminal legislation; Secondly to further strengthen the supervision of criminaltrial work; Again, make sure the judge judge independence. Finally improve thejudge’s professional quality.