On The Discretion Of The Judge In Private International Law

"Discretion" exists with "strict rules",the contradiction of which has been discussed for several years in adjudicative activities.One more important difference between Private International Law and other branches of Law,is that the judge must select a proper law to fit the case firstly,and then make the legal decision according to it.So discretion is especial in the area of Private International Law.Analysing the procedure of selection and application of a proper law,may help guiding judge to deal with the case felicitously,and protect the rights of both parties.This article has four sections,including connotations and implications of discretion,basis of discretion existance,analysis on procedure of discretion,and balance system of discretion.Part one—connotations of discretion.Scholars have multiplicities of views on "discretion",for example,discretion is thought as "one kind of trial powers",or "explanation of legal rules",or "selective power of judge"and so forth.Based on these views,this article gives the meaning of "discretion" by putting it into the area of Private International Law at the first.Part two—basis of discretion existance.This section contains historical sources of discretion,evaluation of discretion,and causes of discretion existance. "Discretion" appeared centuries ago.After reviewed its important function by people,it has legal effects.It's necessary to admit "discretion",because Private International Law is based on it.The nature of discretion is "possibilities of selections",and Private International Law is to deal with arguments which is of "foreign factors",the judge has to choose a proper law amang local law and many other foreign laws.So there is large space in Private International Law for existance of discretion.From another view,different judges may have different judgements on objective facts,so the facts are indeterminate; fundamental rules of Private International Law are conflict norms,which are not profect enough.The judge should explain the meaning of conflict norms in details to fit the case,and the explanation depends on the understanding of judge,so just as the "facts" that different understandings have different explanations.The legal rules are also indeterminate.Varieties of indeterminancies creat the condition for existance of discretion.Nowadays,many countries have rules that judge has obligation to trial,and the pursue of "substantive justice" has influences on judges' idea,so all of them require the judge to act at his discretion.Part three—procedure of discretion by vertical analysis and horizontal analysis. "Vertical analysis" is that analysing discretion from legal thought,step by step,espacially in Private International Law,to show the influences of legal thought.Generally,legal thought has three parts: interpretation of legal rules,recognition of objective facts, and legal categories. "Interpretation of legal rules" is to make legal rules clear,in details,depending on the judge's cognizance.So it is effected by subjective factors. "Recognition of objective facts" requires the judge to master what were the real facts by proofs.The judge gives the proofs legal effect absolutely on his own discretion.So this part is also under the control of subjective factors of judge. "Legal categories" is that the judge puts "rules " and "facts" together.How to put them together is upto the judge.In a word,discretion is controlled by legal thought. "Horizontal analysis" is that the outer factors have functions on discretion. The factors are:intersts of nation and society,policies,pursuit of justice,legal tradition and notion,admit of legal decision,and professional ethics of the judge.Their functions can not be ignored.Part four—discussion of balance system of discretion. "Discretion" must be under the control of legal rules,and then pursue the balance between "rules" and "random".Besides validity,discretion also has to meet the demand of rationality,in order to follow the judgement of value of Private International Law, and to protect the order of international civil relationship.