Research In The Civil Trial Judge Discretion To Freedom

The judge discretion is an important part of modern judicial system, its alwaysthroughout the judicial activities, although different culture background, will bring updifferent legal system, but discretion embodies the common attribute of the modern rule oflaw culture. Judge discretion in short is the judge in the judicial trial, give the judge in theprocess of acknowledgment and to the fact of the case law applicable to the relevant facts orlaw to be decided or no reasonable choice. This option can meet the demands of justice, andconform to the requirements of the judges profession, check of dispute to the hirer, have veryimportant significance to promote social justice. Under the traditional litigation theory in ourcountry, the judge discretion is not recognized, but the society always in constantdevelopment and change, the complicated social relationship of justice to bring very greatpressure, law and relative lag. Therefore, the more complicated social relations, is not easy ispredicted by the law, to be reasonable. In modern society, the judge should not be passivelegal practitioners, should not be mechanical law of craftsmen. Should be broad-minded andinstead, give full play to the subjective active, seek a standard development and innovation ofthe legal person. With the development of the rule of law, the judge discretion is workingtowards this direction. Whether in theory or practice, the focus of the debate is not whetherthe judge should already have discretion, but how to exercise of the right and reasonable limitjudge’s discretion, judges enjoy and exercise of discretion is self-evident. But our countrylegal system is not very complete, the judge team’s quality level is not high, the judicialenvironment is not open, fair enough. The subjective and objective reasons, the discretion ofthe judge in our country the improper exercise of the phenomenon such as abuse, thanks inlarge part to damage the image of justice, reducing the judicial authority, and not conducive tothe development of the legal construction, to maintain public interests, the construction ofsocialist harmonious society goal or effectiveness, affected by a lot of, and thus fundamentallyaffected our country’s socialist legal system construction. The author agrees with the judicialactivism, support to give judges discretion. In the fact that phase, discussed the significance, the burden of proof allocation of discretion of applicable conditions, put forward in theburden of proof should follow the principle of distribution; Discuss the evidence ability,mainly involving the association rule and expound of the illegal evidence elimination rule andputs forward Suggestions for the detailed rules, and can be used reasonable force defensesystem, litigation delay; Discusses the probative value of discretion of the judge. In legalapplication stage, mainly from two aspects of legal reasoning and legal interpretation of theuse of discretion is analyzed, in order to more deep understanding of civil trial in thediscretion of the judge.