The Theory Of The Judge’s Discretion In Fact-finding Of Civil Action And Regulation

Discretion is an important power when the judges hear the cases, it is theconnection between the law and the specific case. The judge’s discretion can bedivided into two stages: the discretion of fact-finding and the discretion of lawapplication. These two stages are closely linked, fact-finding identified as the premiseof law application, fact-finding right or not directly affect the fairness of the case.In the fact-finding stage, the judges need to exercise discretion to allocate burdenof proof, collect evidence, confirm the evidence capability and judge the probativeforce. Through the exercise of discretion, the judges can take shape inner conviction,to complete understanding of the facts of the case, lay the foundation for the lawapplication. Therefore, how the judges exercise the discretion reasonable in theface-fingding stage, will be of important significance to referee the case. At present,judge’s discretion in the fact-finding stage lack of some rules and restrict means, itopens the door to abuse of discretion.For the fact that judge’s discretion in the fact-findings is in a disordered stateright now, the author formulate the theory of discretion systematically, analyze thediscretion of allocating burden of proof, collecting evidence, confirming theevidence capability and judging the probative force in the fact-finding, discuss theregulatory measures of discretion. On the basis of detailed analysis of the foreign countries’ discretion, combined with China’s judicial practice, the author give somesuggestions which we suppose, would have some help to the judges exercisediscretion of face-finding regularly.