On The Discretion Of Judges And Legal Regulation

Judges Discretion has always been a permanent indemnity new problems, because the judge discretion to achieve the rule of law are the core, it is also the key issues in the judicial system. Give judges discretion, and discretion necessary restrictions, has used more and more countries, and continue to explore the most appropriate mode of operation. Since reform and opening, China's legal construction has made remarkable achievements, a socialist legal system with Chinese characteristics has been formed for China to implement the basic strategy of rule of law laid a solid foundation.However, due to the present stage is in the social transition, difficult cases emerging, judicial corruption have occurred, which restricted judicial discretion to be the moment the important task of judicial reform in China. It is against this background, the paper based on the discretion of the judges and the general theory of reality, focusing on the practice of judicial discretion of the judge facing the focal point. Our aim is to explore how to regulate the discretion of the judge's possible path.In addition to this introduction and conclusion is divided into four parts:Partâ… : Main discretion of the judge's basic concepts, the characteristics of judicial discretion, the role of judicial discretion. That the discretion of the judge is bound by the law and have some flexibility in the objective existence of judicial power, its ability to play the interests of justice, the role of justice.Partâ…¡: focuses on the discretion of the judge the scope and principles, in his discussion of the scope of judicial discretion, the author mainly from three angles, namely, the process from the perspective of justice; from clear whether the case can be regulated situation covered; from cases involving the legal department of view, and were discussed. Explore the principles, the author summarizes and analyzes the theory and practice on principle, to the exercise of judicial discretion that the principle includes the principle of legality, rationality principle, the principle of fairness, openness principle, the principle of procedural justice.Partâ…¢: The author focuses on the improper exercise of the performance of judges, that judges the performance of improper exercise of discretion for the three cases, that is, not to exercise discretion; wrong exercise of discretion; abuse of discretion.Will boil down to three causes, namely, the law itself is not complete; justice system is not independent; judge the overall quality is not high. Finally, improper exercise of the judge to determine the standard, that is, in line with rational reasoning rational man; as accepted by the general rational person; enforceable; meet the values of fairness and justice.Partâ…£: First, it analyzes the discretion of judges to the need for regulation, that is, the weaknesses of human nature and power based on the characteristics of judicial discretion must be regulated. Second, the clear regulation of the reality of its situation, that is, the lack of a clear and detailed requirements, our judges have too much discretion.Finally, the judicial practice of China put forward specific regulatory path. From strengthening legislation and strict judicial procedures, the introduction of case law, improve the quality of judges, improve the people's jury system and the legal supervision of several aspects.