On The Application Of The Judge's Discretion In The Judicial Trial

The operation of the law is inseparable from the participation of the judge,but the use of the law of the judge should not be mechanical,but should be dynamic,this dynamic use is mainly refers to the exercise of the discretion of the judge.As a statute country,our country adjusts social relations mainly through general legal rules.However,due to the characteristics of the law itself and China's special national conditions,through the legal rules to adjust the social relations may appear when the application of legal rules exist obstacles.These include gaps in legal rules,ambiguous legal rules,conflicts of legal rules,and the application of legal rules that would lead to injustices and so on.In the event of an obstacle to the application of the rules of law,the judge can neither refuse the referee on the grounds of the existence of the rule of law,nor abuse the judge's jurisdiction to make an unjust judgment.Therefore,the judge needs to be guided by the spirit and principles of the law,through the exercise of the judge's discretion to maintain social justice.The rule of law is the first obstacle to the application of legal rules.The so-called legal rules of the blank,refers to the judge in the trial of a case,found no legal rules to adjust the social relations situation.Due to the relative stability of the law and the change of social life,the existing law may lag behind the fact that it exists.Therefore,when dealing with a case,the judge often presents new circumstances and new problems that the legislator has not foreseen,At this point the judge can according to the spirit of the law,mainly the guiding principles of the law to make judgments to make up for the gaps in the rules of law.The exercise of the discretion of a judge is a way of satisfying the demand for efficiency in judicial proceedings and ensuring the realization of fairness and justice.Blurring legal rules is the second obstacle to the application of legal rules.The so-called legal rules are ambiguous,that is,for a case although there are legal rules applicable,but the legal rules of a concept or norms itself there are two or more explanations,and thus may produce a large gap or even the opposite of the referee results.When the judge in the case of the trial of the specific application of the rules of law,if there are ambiguous rules of law,the judge must explain the rules of law,and the interpretation of legal rules should be based on legal principles as a basis and direction.The judge interprets the vague legal rules under the guidance of legal principles.From the point of view of fairness and justice,the judge can make the abstract legal rules better adapt to the specific circumstances of the specific cases and ensure the fairness of the verdict.Conflict of legal rules is the third obstacle to the application of legal rules.The so-called legal rules conflict,that is,for a specific case there are more than two legal rules can be applied,and the application of different rules will lead to a larger gap or even the opposite of the verdict.When the conflict of legal rules,the general rule of law can be based on the choice and application of legal rules,such as the superior method is superior to the lower law,the new law is better than the old law,the special law is superior to the general law.However,the conflict behind the rules of law is often the conflict between legal principles and legal values.The conflict rules do not measure the value behind the rules,and the application of conflict rules may be contrary to the legal spirit.So in some specific conditions,but also need to judge by the judge to judge,by exercising the judge's discretion,to make a fair decision.The application of legal rules in cases of apparent injustice is the fourth obstacle to the application of legal rules.For some cases,the rules of law have been clearly defined,but the application of the law to the rules of the referee may lead to the case of injustice.When the applicable rules appear to be unjust in the case,the judge must proceed from the legislative purpose,in accordance with the spirit and principles of the law,by exercising the discretion of the judge to make a fair judgment in an exceptional manner.