On The Judge’s Discretionary Power In The Civil Trial

Fairness and justice reflects human’s persistent pursuit and the eternal theme of judiciary. Judge’s discretionary power, a perennial topic, is a double-edged sword as to the realization of fairness and justice in the judicial process. Below are several reasons entailing the application of discretionary power in judging specific disputes, such as the hysteresis quality of legislation, the incompleteness of laws compared with social lives, and the people’s comprehension discrepancy of the law caused by its abstractness. In civil trial, due to various reasons, wrong judgments caused by the judges’ inappropriate application of discretionary power exist, bringing in injustice judicial cases and undermining the law’s authority and credibility.Judge’s discretionary power, bearing the value of justice, efficiency and order, has the quality of judicial power, judge power as well as the power of interpretation. In civil litigation cases, it applies to the whole process of civil trial, including the process of finding facts, adopting applicable law and evaluating the results of judgment. To apply the judge’s discretionary power reasonably should satisfy the principle of legal, principle of rational, principle of fair and principle of prudent. Generally speaking, the improper performance of the discretionary power mainly includes the non-performance and wrong-performance of the discretionary power, of which the main reasons are the short cognitive judicial ability and the pressure of non-cognitive factors.The path to standardize judge’s discretionary power is to be carried out from three aspects. Firstly, to improve the comprehensive qualification of judge team so as to safeguard the proper performance of judge’s discretionary power. Secondly, to promote the disclosure of judiciary process to supervise the normative exertion of judge’s discretionary power. Thirdly, to strengthen and improve the legal system construction so as to bind the right application of judge’s discretionary power.