| In judicial practices, judges cannot refer to the correspondent provisions in the case trails for the imperfect and hysteretic current legal system, which requires the judges make the comprehensive discretionary judgment according to the spirit of legislation, the social expectation to justice and the personal experience in case trails. However, the discretion is embedded with to much private will. If performed improperly, it may trigger disputes. This study is based on the case analysis of defamation of Naxi ancient music, which happened in Li Jiang city, Yun Nan Province in 2004. This case offers a typical example to analyze how the judges perform judicial discretion reasonably and properly when dealing with the cases of this kind. In defamation cases, judges have more freedom to practice the discretion relevantly because there are many indefinite factors like the definitions, measuring scales and public attitudes which call for the judicial discretion. On the other hand, the current relevant legal system is not so perfect and humanic that judges cannot judge according to the definite legal provisions.This thesis makes a detailed analysis to the specific legal provisions and relevant legal interpretation of defamation case trails. By comparing the application of judges to this case, the conditions of judges to perform discretion will be defined. Secondly, judges should give the enforcing reasons for making every discretionary judgment. Thirdly, there are many indeterminate factors in current legal system to identify the fact of defamation, this author of this thesis will analyze if it is reasonable for the discretion in performing the fact identification. Last but not least, based on the analysis of this case, the study concludes the judicial approaches to restrict the discretion of judges and puts forward some suggestions. |
