The Reasonable Exercise Of Judge's Discretion In China

Now judicial reform is being conducted in our country. How to understand the judge's discretion, and the judge how to play the positive role effectively of it has become a question of great theoretical and practical significance. To research the issue of judge's discretion, should not be only based on the actual situation in China, but also learn from the judge discretion of other foreign countries, which has solid methods and rich experience to ensure the orientation and effectiveness during theoretical guidance on the practice. This requires a comprehensive understanding of academic and practical meaning in judge's discretion, and have a clear understanding of its depth and breadth in this research, hold the pulse of the historical development accurately in judge's discretion, make a profound understanding of current status and problems of the judge's discretion, then based on above, to present the guarantee of principles and reform proposals in the reasonable exercise of the judge's discretion.China is a statute law country, even though there is no provision in the procedural law rule that the judge has discretionary power, but because of the complexity of the facts of the case and the internal need of the provisions of substantive law, the judges have a certain standard discretionary power in trial activities such as in the choice of the proceedings, examining and verifying the evidence, findings the fact of case. therefore, the law should give judges the discretionary power in the trial practice. However, there are many problems both in theory and practice field of China's judge's discretion, the exercise of the discretion of the judge is not in a very satisfactory state, the abuse of the discretionary power become as a frequent phenomenon. In order to solve these problems, many places have introduced laws and regulations to regulate the reasonable exercise of discretionary power.In this thesis, the discretion of judges to parse the content from different point of view of the discretion of the judge's philosophy of existence, the basis of jurisprudence firstly. Then, after analyzing the factors which impact the exercise of the discretionary power, combining with problems which occur in existing judicial practice, give suggestion to reasonable exercise of discretionary power.