The Study On Judicial Discretion Standard:A Kind Of Rule Control Model

The idea that judicial discretion is used to control the discretion of judges is essentially to resort to a rule-based control technique to suppress the abuse of judge's discretion.The "judicial discretion benchmark" is derived from the judicial practice of the court,which aims to strengthen the self-control of judge's discretion by setting a specific criterion for the selection of rules.Of course,as a new mode of control,we may have too many ideal expectations for judicial discretion,and there is always a certain distance between ideal and reality.Therefore,a more rational and pragmatic research position is through to the judicial practice unceasingly exploring and solving questions,in attempt to promote judicial discretion benchmark is more scientific and reasonable at the same time,as a "breakthrough",try to explore the judicial discretion governance resolve this effective scheme of the judicial practice difficult problem,in this paper,the writing attempts to conduct a preliminary beneficial exploration in this area.In addition to the introduction and conclusion,the article is divided into four parts: the first part introduces the premise of the existence of judicial discretion benchmark,defines it and introduces its characteristics."Judicial discretion benchmark" refers to the set by the court,and aims at controlling the judge discretion to exercise a series of specific,detailed and practical operability of the system of rules.Judge's discretion is the base of judicial discretion.The purpose of the court's judicial discretion is to better control the exercise of judges' discretion.The judicial discretion benchmark has three characteristics: self-discipline,practicality and social adaptability.The second part elaborates the theoretical and practical basis of judicial discretion.As a rule control mode,the judicial discretion is interpreted from the aspects of "rational construction" and "spiritual connotation" respectively."Rational construction" points out the three elements of rule control mode,namely value orientation,rational logic and rule factor."Spiritual connotation" points out that the control mode of rational characteristics at the same time,the rules of stress and to pay attention to overcome its rigid "rules",in order to avoid the judicial discretion benchmark lose flexibility should apply.The practical basis combined with the current judicial practice in China shows the importance of judicial discretion to control the discretion of judges.The third part focuses on the technical construction.First of all,it should be clear that the judicial discretion standard is a technical means of courts to control the judicial discretion.It is more suitable to choose the monism view by combing the two technical views namely "monism" and "dualism" and combing the current Chinese judicial practice.It can be called "uniform discretion".It also analyzes the technical construction of the plot under the "uniform discretion".The fourth part emphatically analyzes the dilemma of judicial discretion as a new control mode and the concrete path to perfect the standard.The application of dilemma points out the two aspects of judicial discretion,namely,"too" and "inferior"."Too" refers to the judicial discretion benchmark set too detailed rules will affect the judge's discretion of normal function,"less than" refers to the judicial discretion benchmark can also lead to the rule itself is too general.It is recommended that the court should hold a modest when making discretion benchmark,pay attention to combine their judicial actual situation,in order to develop their proper discretion benchmark to reasonable control discretion,promote the progress and development of justice.