Research On Judge Discretionary Explanation

In judicial practice,the legal facts involved in a specific case are complex and intricate,and they cannot be covered by the legal provisions.Whether the judge judges the case in judicial practice,whether he is active in the application of the law,or whether the judge discretionary explanation is theoretically legal or just a judicial method is worthy of discussion.This article aims at carrying out a theoretical research on the judge discretionary explanation,with a view to helping the study on China's judicial practice and judicial rationality.First,explain the similar concepts of judge discretionary,legislative explanation and normative judicial explanation,and clarify that the connotation of judge discretionary is an explanation made by ordinary judges applying general legal provisions and court specification explanation to specific cases,It is characterized by the process of “discovery”,which is the confirmation and intensification of the original intent of the legislation,and it has individual effectiveness.Secondly,the nature of the judge's discretionary explanation is questioned,and it is believed that although judges have discretionary explanations that have their source of validity,their origins,and their historical origins,due to their lack of formal origin,they can only be a judicial method.Again,justify the discretionary of the judge.The conceptual school of law,the law of interests,the school of liberal law,and the school of pure law theoretically demonstrate the justification of the discretionary explanation of judges from different perspectives;the judicial authority and discretionary power enjoyed by judges due to professionalism,and the legal adjustment system has Limitations justify the judge's discretionary.Finally,suggestions on the use and implementation of discretionary explanations by judges,including the prohibition of abuse of power,are the fundamental principle for controlling the limits of discretionary;when judges are used to interpret ruling cases,they must accurately grasp all important influencing factors in the concept of uncertainty;at the same time,the level is dominated by legislative control and judicial process control.The non-legal level is dominated by the system of judges' appointments,the professional ethics of judges,and the news media,thus regulating the discretionary of judges.