On Ethical Constraint Of Judge’s Judicial Discretion

The Third Plenary Session of the18th Central Committee of the Communist hasput forward specific requirements on the reform of judicial system, which has createdextensive discussions in both the practical and academic judicial circles. How toindependently use the judicial power and prosecutorial power is now pushed to anunprecedented level high. Pilot programs for reformation of judicial power operationmechanism and open up of inspection affairs have been carried out in many provincesand cities in China by Supreme Peoples Court and Supreme Peoples Procuratoraterespectively. It is a historical opportunity lying ahead for reform of judicial system.As for judges, it is both opportunity and challenge. With the deepening reform ofjudicial system, a liable judgment system will clearly be constructed thus realize thesaying “judge who makes judgment judges”.There will be less importance paid to themodel of inner administration management in court and less and less interference fromchief judge and procurator-general will be made during the process of judgment. Thejudicial power will be returned to collegial panel and judges in true fashion. This meansthe degrees of judicial discretion will be increased as well as the responsibility of thejudge using the discretion.There has been much research and study in judicial field on how to effectivelycontrol the judicial discretion of judges. However, this is seldom analyzed fromethics point of view and no constructive research results have been seen so far. Thisthesis aims to make study on the concept of judicial discretion, analyze the basis ofjudicial discretion and carding the ethics property of judicial discretion; analyze theconnotation, necessity, importance and feasibility of judicial discretion; analyze theethic difficulties and reasons in respect of judicial discretion of judges under the currentjudicial environment. Propose the range and the basic rules of judicial discretion andhelp the using of judicial discretion.The main routine of this essay is analyzing the difficulties and reasons in respect ofjudicial discretion of judges under present judicial environment and proposing the basicrules and choices of judicial discretion of judges. We think the present ethic difficultieslie in fact cognizance, standard choice and autonomous compromise, of which the reasons are judicial administerization, the right of self-interest nature, powerful legalauthorization and the disunified ethic standard and the absence of supervision frommedia. However, there is a large space of the ethic constrain in the using of judicialdiscretion of judges in evidence investigating, fact affirming, law application. Ethicconstrain of judicial discretion of judge should be conducted under the guidance offairness and justice, judicial conscience, judicial public trust, public order and moral. Inthe final, this essay presents some trivial suggestion on education of judicial value,standardizing legislation of judge’s professional ethics, promoting the constructing ofjudge’s professional ethics and building and completing the system of supervision frompublic media.