On The Discretion Of Chinese Judge

The concept of law originated in nineteenth Century will be the certainty of law and logic self esteem to the extreme,the authors think between the upper and lower concept concept of law is a complete unity,not legal loopholes,if not applicable to the specific case a concept,but also from the concept of abstraction.But in the late nineteenth Century and early twentieth Century,with the development of capitalism,people have long believed the basic belief of "law is determined",continuously from postmodernism,positivism and relativism doubt and attack,especially in the Hart and Dworkin about whether the law has the only correct answer and fight in the prominent.and how to fill these loopholes? Does the judge have discretion in the face of vague legal norms? The answer is very positive.The code is not perfect,the judge in the case can not rely solely on the logical deduction of the right,persuasive conclusions.Practice has proved that the discretion of judges as an objective phenomenon of justice,not only can make the uncertainty of the law to determine,but also to maximize the protection of individual justice.However,in the case of the trial,the judge will appear or not to abuse of discretion and other phenomena,if not a reasonable regulation of the discretion of the judges,the social contradiction is particularly easy to be intensified,the discretion of the judge will become corrupt law,trampling on justice demon.To ensure the proper exercise of power,to avoid the abuse of power,to achieve a reasonable constraint on the discretion of the judge,and then realize the relatively uniform judicial standards,is one of the most important topics to solve China's judicial theory and practice sessions to.This paper discusses the process in the course of development and theoretical foundation of the judicial discretion in the profound meaning for the judge's right of discretion,performance and problem analysis of judicial discretion in judicial process right now in China,and then find the reasons to influence the judge discretion.In consideration of our judges in the special case of the exercise of discretion under the direction of development and looking for ways to judge discretion,and to put forward some opinions on standards,for the construction of the socialist road.