The Limitation Of Judge’s Discretionary Power In Administrative Compensation Litigation

The judge’s discretionary right of compensation in administrative compensation litigation refers to the judge’s discretion to determine the final amount of compensation when the judge hears a disputed case of administrative compensation and both parties exhaust their means to prove the specific loss.Judging from the current practice of administrative compensation litigation in China,administrative compensation disputes mainly focus on how to determine the amount of compensation.In litigation,it is often difficult to prove the amount of losses.In this case,the fact of damage has occurred,and there is no basis for determining the specific amount of compensation.If the court does not support the administrative phase at all.The request for compensation from a person is obviously contrary to common sense.Therefore,the law gives the judge the power to decide the amount of compensation for damages at his discretion in the light of the actual circumstances of the case.However,there is no consensus on the circumstances under which judges can determine compensation and how to determine the amount of compensation in specific cases.By analyzing the cases involving administrative compensation disputes in the judgment documents network,it is found that judges abuse their discretion when determining the amount of administrative compensation: On the one hand,when exercising discretionary power,the judge ignores the prerequisite elements such as incapacity of proof and the obligation of appraisal,which is mainly manifested in the fact that the judge determines the amount of compensation directly under the condition that the specific loss can be found out through appraisal and appraisal.What’s more,when it comes to the determination of the evaluation report,the judge rejects the application for evaluation and arbitrarily determines the amount of compensation regardless of the evaluation conclusion.In view of the abuse of discretionary power by judges in practice,comprehensive measures should be taken to regulate the application of judges’ discretionary compensation power.First of all,we will make a comprehensive exploration of the concept,nature and review criteria of judges’ discretionary compensation power from the theoretical level,and understand the theoretical significance of judges’ discretionary compensation power.Secondly,analyze the necessity and feasibility of limiting judges’ discretionary compensation power from the macro level,and limit judges’ discretionary compensation power from the two paths of entity and procedure.Physically,the judge’s discretionary amount of compensation needs to be based on the fact that the case is difficult to find out,and the evidence of the parties cannot be premised.Procedurally,the application of the judge’s discretionary compensation authority needs to meet the four elements: the fact that the damage has been confirmed,the actual loss is difficult to verify,the forensic procedure is initiated to assess the loss,and the judge’s access to evidence is also unable to identify the actual loss.Finally,further distinguish from the micro level between the absolute prohibition of judges’ discretion and the different situations in which judges are allowed to exercise discretion: there are legitimate and effective assessment conclusions,a realistic basis for initiating assessment procedures,and professional issues that absolutely prohibit judges from discretioning the amount of compensation;there is no realistic basis for evaluation,and there is no technical provisions for evaluation.When the parties to the case and the dispute have reached an agreement,the judge is allowed to determine the amount of compensation,with a view to effectively standardizing the judge’s discretionary compensation power.