Research On The Regulation Of The Discretion Of Judges In China

Since the birth of the judge profession,he has been confronted with two contradictions: on the one hand,judges need to ensure that the universality,stability and predictability of the law can be realized,on the other hand,it is necessary to combine specific case analysis to achieve the case.Fairness and justice.This contradiction determines the complexity of the judge's judgment.The judge must balance the legal rules to achieve universality,stability and predictability,and play a discretionary role in order to achieve fairness and justice in the case.However,there is no fixed amount of consideration for the contradiction between the two sides.How to achieve the best effect can be undoubtedly a legal problem.Relying on the judge himself will inevitably make mistakes.When the discretion exceeds the reasonable limit,it will cause damage to the legal rights of the parties,resulting in the abuse of discretion.To prevent the abuse of power,explore the general rules for the exercise of the discretion of judges.A scientific and reasonable judge discretionary operation mechanism has become an important issue that must be solved in the century of the realization of judicial justice and efficiency.Judge discretion is not an absolute freedom,it is a discretion within the law,it has external and internal restrictions.Externally,it is subject to the principle of legality.When there is a law,it is limited by the possible meaning of the law and generally cannot be exceeded.When there is no legal provision or the law is incomplete,it is limited by abstract principles such as legislative purpose,legislative spirit,and social justice.As far as it is concerned,it is limited by the principle of reasonableness.Even if the judge's discretion is exercised within its limits,it cannot do whatever it wants,is capricious or has an improper purpose.Discretion means doing things according to the principles of reason and justice rather than the will of the individual;doing something according to the law rather than personal likes and dislikes.As China's judicial system reform continues to deepen,how to regulate the discretion of judges has gradually become one of the focal points of debate.