| Any law includes criminal law, is born with such as vagueness, lagging nature, indistributionality, the judges are endowed with discretion, which supplements judicial system. Criminal justices discretion is conducive to the protection of citizens’ right to a fair trial, realize the unity of general justice and individual justice, and the criminal judge is the last protective screen to tome true social equably. He or she has a significant influence about human being life, freedom, property and other major interests. So the criminal justice discretion is particularly important.Due to the system, legislative, or the quality of judges and other reasons, the negative effect of criminal judges discretion is revealed, the outstanding performance of this negative effect is the abuse of discretion, including intentional misuse and unintentional abuse, resulting in unfair justice, judicial authority and other serious consequences.Therefore, it is contended that to affirm and emphasize the value of criminal discretion is meaningful, at the same time, it must be controlled, to prevent the wanton expansion of the discretion, infringement of private rights of citizens, undermine the rule of law, which has become the consensus.The independent trial is an important principle in the Constitution gives the judge exercises the authority, the legitimate exercise of discretion, fairness and impartially handle cases, plays an irreplaceable role in the maintenance of judicial authority. Therefore, to protect the legitimate exercise of criminal judges’discretion, must guarantee the independent judicial power, the main content is to be divorced from jurisdiction and administration; Secondly, should set up the necessary restrictions in the normative level prior to the judge may exercise the power of the field, namely static control of criminal discretion, including criminal legislation and judicial interpretation, criminal case guidance system; In addition, it offers premise condition for the static control of criminal discretion for judges to exercise criminal discretion, but it may has the abuse of discretion behavior in specific discretion. So it must give the dynamic control in process of judges to exercise discretion, including the litigious right restriction mechanism, standard of judgment; Finally, we must pay attention to the effects of judge’s conscience in the criminal right of discretion of judges, because the conscience, quality is the internal factors, internal factors play a decisive role, it is also the ultimate guarantee to prevent the abuse in criminal judges discretion. |
