Running Of The Discretion Of The Judge

The discretion of the judge in the history of the evolution of the process of gradually highlights its importance, it promotes the progress of China’s rule of law, and the proper development of Chinese rule provides guidance to fully guarantee to the legal justice and the realization of justice. In the application and evolving process of our laws, due to legal limitations and vulnerabilities of their own existence and the rapid development of society, the judges in the course of the applicable law is inevitable to exercise judicial discretion. When we make some researches about the discretion of judges, we have many ways to go, the author suggests that it should be mainly started from the conceptual analysis and from China’s development process and its problems in other aspects, and put them in a comprehensive consideration, then we can get the aim of protecting regulating the judge’s discretion, and a reasonable and orderly condition of the judge’s discretion.The judge’s discretion can overcome the conflicts between stability and change of the law, make up the legal loopholes, and adjust contradictories between old laws and new types of cases so on, these instructions can tell us the increasingly importance of the judge discretion. The development of judicial discretion has been a long process for recognition of the extent of that power is gradually improving, but the discretion of the research is still in its infancy. Only by some certain principles and limits can we guarantee the implication of the judge’s discretion, the principle of the power is based on the facts, and started from the principles of openness and fairness and enforceability of judgments, etc., but because of the judge’s own quality, the power characteristics of its own discretion, the legal guarantee on judicial discretion is not perfect, controlling supervision mechanism is not perfect, the transparency of the judge’s discretion is not high, the chief of the color of the political and legal system is interference in the independent exercise of discretion and many other reasons, we have many risks in abusing of the power, the phenomenon of improper use of judicial discretion is repeatedly occurred, which resulted in the use of the phenomenon of corruption laws, it likely causes a miscarriage of justice, in violation of the value of judicial discretion and significance of the establishment of the original intention.This paper analyzes and summarizes the current imperfections judicial discretion exists, and gets the following conclusions: in order to achieve freedom judge ordered discretion, not just only emphasize the limits on discretion, but also in certain safeguard the legitimate exercise of discretion extent, if we want to improve the power we must start from the protection of rights and powers of regulatory, and if we want to protect the power, the most important thing to do, it to improve the judicial discretion of the legal protection system, so the judge discretion right can be "partakers famous", and we can strengthen job security and safeguard the independence of judges judge trial. Therefore, while we prevent the excessive discretion of the judge and the evils of abuse, we need to take appropriate measures to ensure the standardization of the exercise of discretion, we need a scientific definition to reach the boundaries of the exercise of the extent permitted of law, to strengthen supervision mechanism introduced precedent system reform, etc., to control the discretion of the judge’s within a reasonable range. Only by doing so can we achieve the true justice.