Research On Deviation Control In The Exercise Of Judges' Discretionary Power In China

It is very difficult for judges to avoid the deviation in the process of exercising their discretionary power.How to control the deviation is a key issue,which directly affects the realization of judicial authority and justice.In recent years,interdisciplinary research has been prevalent,and more and more interdisciplinary studies of law and other disciplines have been conducted.Discussing the deviation control of judges' discretion from the perspective of cognitive science will provide new research perspectives and solutions for the research in this field.The meaning of "deviation" in the study of judges' decision-making in the field of law comes from "cognitive deviation" in the field of psychology,which refers to the deviation and fallacy of cognitive subject's cognition of cognitive object caused by the limitation of human cognitive ability.The deviation of judges' discretion lies in findings of fact and application of law.The deviation of fact-finding is based on the inconsistency between the legal facts and the objective truth of the case.The deviation of law application is reflected in judges' choice of legal provisions,legal interpretation and legal reasoning.The deviation of judges' discretion may be caused by many factors,one is the judges' personal cognitive ability and professional level,such as judges' intuitive factors,judges' mode of thinking,judges' understanding of the law,judges' professional ability and moral quality,etc.Second,influenced by judges' group decision-making,our country adopts "minority subordinates to majority" in the collegiate trial mode.The principle itself has many problems,and the "silent spiral" effect of group decision-making can easily lead to deviating results.Third,the external environment and factors interfere with the judicial activities of judges,such as the interference of administrative power on judicial independence,the influence of media public opinion on judicial adjudication activities,etc.Judges' adjudication activities will be interfered and influenced by many factors,any of which may lead to the occurrence of deviated results.In view of this situation,only by controlling these discretion deviations in each link as far as possible,can we try to avoid the negative effects of judicial injustice caused by these deviations.To control the deviation caused by the exercise of judges' discretion,one is to combine the individual amendment of judges with the restriction of system.The cognitive factors of judges play an important role in the exercise of judges' discretion.Through the professional psychological analysis training of judges,the judges' reflective cognitive ability can be improved,the restraint of subjective and narrow experience can be prevented,and the intuitive deviation can be reduced.We should improve the judges' responsibility system,establish a system of professional ethics responsibility for judges,strictly set up qualifications for judges,set up professional selection institutions,and make progress towards regularization and specialization in training mechanism.We should improve the quality and ability of judges and the level of trial through institutional constraints.Second,we should improve the court trial mechanism and professional security mechanism.In the judgment,we should try to gradually open the "minority opinions",fully implement and improve the professional security mechanism of judges,such as improving the personal safety guarantee system of judges,improving the professional income guarantee system of judges,strengthening the status guarantee of judges and ensuring the stability of the identity of judges,and so on.Third,we should eliminate and prevent external interference factors affecting the independence of the trial.On the one hand,we should eliminate the interference of the executive power on the judicial power and guarantee the independence of the trial.On the other hand,we should deal with the relationship between the media and the judiciary and avoid improper public opinion or bad media interfering with the judges' discretion in the case.