The Reasonable Operation Of Discretion Of The Judge In Our Country

At the discretion of the judge is an enduring topic, discretion is exotic, from the westernlegal culture. Now cause a heated debate in our country, because during the course of Chinesemodern legal system construction, judicial reform has been praised by people, and the judicialreform is an important problem is how to treat the judge discretion. In the rule of law societyitself is "centered on rule of law and order" demands under the premise of the rationality ofthe judge’s discretion or legitimacy is often questioned. Especially under the background ofChina, whether to give judges discretion, judge whether enjoy much discretion in within thescope of what, and how to standardize the discretion of the judge, is the important propositionof Chinese judicial reform. Unceasingly thorough along with our country socialist legalsystem construction, at the same time also brought some social conflicts intensified, so how togive play to the discretion of the judge, and carries on the effective rules and regulations,there is the necessity of reality.This paper uses comparative analysis and empirical analysis, to the discretion of thejudge interpretation and analysis. First of all, from the concept and necessity of judge’sdiscretion, respectively expounds the domestic and foreign scholars for the understanding ofthe judge’s discretion, and also puts forward the author perception of the scope of discretion.From the aspects of value about the exercise of discretion to make up for the loopholes, andpromote the development of the law and the significance of individual justice. Secondly,through the sentencing discretion of judges outside investigation, analysis and comparison ofAnglo-American law system countries judges discretion judge discretion and civil lawcountries, and expounds the two big legal system the basic theory of the judge discretion,operation characteristics and evaluation of two big system. Again, based on nationalconditions, in-depth analysis of China’s discretion to exercise the status quo, plane analysiscauses of the problem of discretion of the judge in our country. The judge discretion of thecurrent problems are: the judge not to exercise discretion, deviation of the judge to exercisediscretion and abuse of discretion of the judge. Deep, the causes of these problems is various,including the existing legislation is not perfect, there are a lot of loopholes that judge cannotcan depend on. The judge’s own reasons, the judge professional knowledge level is uneven, vocational moral quality is not high. Judicial independence not reasons, trial activities by themethod of external factors, lead to different connection, abuse of discretion of the judge.At the end of this article demonstrates the reasonable operation of discretion of the judgein our country. This part is the focus of this article is, given the limitations of statute law, thejudge in the process of legal application inevitably discretion, that the discretion of the judgemakes the law can be properly implemented, the key problem is not to eliminate discretion,but how to carry on the system design and exploration of the legal interpretation andreasoning technology to ensure that to reasonably exercise the discretion of the judge. So theauthor put forward the reasonable operation of specific ways: in terms of legislation, toperfect the laws and regulations, to reduce the discretion space, perfect the case guidance,realize the connection with the sentence; In terms of system, to reform the judicial system, therealization of judicial independence; In one aspect, the judge in order to focus on promotionof political quality, professional quality and moral quality, to ensure a fair trial; On thetechniques and methods, should actively using legal method, strengthen ruling ShuiLiXing.Contemporary China is in a transition period, a rapidly changing social flexibility putsforward higher challenge to law, make the contradiction between norms and facts moreoutstanding. Of course, can alleviate this contradiction through the legislative way, but is notenough to just rely on legislative approach. Through the exercise of the judge’s discretion, canthe judicial initiative to effectively make up for the lack of legislation, law can better adapt tosocial change, at the same time for the process of judicial reform in China has a fairlysignificant practical value.