Research On Judicial Discretion Of Our Country

The study of judicial discretionary power has drawn great attention in Acdemics andbeen a hot study topic. Yet, the angles and opinions are various. During handling of specificcases, the judge shall strictly do as prescribed by law, upholding the majesty of the law, whileat the same time maintain their discretionary power. The judicial discretionary power andstrict legal rules are complimentary because justice itself is a reflection of discretionary powerwhile the law provides space for judicial discretionary power in return. Thus, these twoelements are intimately linked for China’s current legal construction level and nationalconditions. The relationship between exercising judicial discretionary power and followingnational existing law is complimentary and consummate. To study judicial discretionarypower is to reasonably regulate the implementation of law and better exert jurisdiction ratherthan avoiding the enforcement of such power. China is a country with written las which hassuch disadvantages as hysteresis, limitation and over-formalization. This requires that thejudge should implement judicial power reasonably. This thesis mainly analyses and studiesfollowing aspects: First, The overview of judicial discretionary power, which includes thedefinition, characteristics and historical development of judicial discretionary power. Thereare different theories regarding the definition including discretionary exercise, law makingand free choice. The characteristics of judicial discretionary power include legal authorization,right finiteness, flexible exercise and independent discretion. The historical development ofjudicial discretionary power covers both western and national development. Second, Thevalue of judicial discretionary power, discussing about the value of such power, pertainingthree aspects: making up for the deficiencies in the law and promoting judicial justice;achieving balance between procedure justice and entity justice; achieving balance betweenjustice and efficiency. Third, The dilemma of judicial discretionary power. There is researchon the insufficiency of the current situation for China’s judicial discretionary power whichcovers two aspects: the dissimilation of the existence of judicial discretionary power and theconsequences of such dissimilation. Finally, The idea of improving China’s judicialdiscretionary power. The constructive ideas shall be promoted by the author through thediscussion of constructing principals, improving measures as well as constructing supervisorymechanism.