Theory Of The Judge Discretion In The Administrative Litigation And Limit Abuse

The discretion of judges refers to the power of the judge to judge the case according to the facts and the legal principle of the case,when the law is not clearly defined and there is no relevant precedent to follow.The judicial discretion in administrative litigation mainly embodies the distribution of the burden of proof,the supplement of evidence,the application of law and the discretion of the executive phase.The judicial discretion has two sides:on the one hand to make up for the defects of law,realize individual justice and justice balance,to perfect the administrative legal system,ensure judicial justice is indispensable;on the other hand,by their own "self selection effect attributes,the specific administrative system and the quality of judges and other factors and in the administrative trial practice can easily be alienation and abuse.The abuse of judge's discretion can be divided into intentional abuse and unintentional abuse according to subjective purpose.The abuse of judicial discretion in administrative proceedings can lead to the emergence of judicial corruption,influence the credibility of the people's courts,distort the values of the masses,and eventually impede the process of rule of law in china.Therefore,the discretion of the judge should be given reasonable regulation.Reasonable regulation of the discretion of the judge,should first legitimate control of the referee,and shift from too much emphasis on the legal review for the review of legality,rationality,and normative judicial interpretation and implementation of the administrative trial case guidance,enhance the professional quality,improve the supervision system and measures.