Case Guiding System Of Judges Discretion Of Regulating

The judge cut right to liberty is an old topic, since the date of production norms,the judge discretion to have come into being, with the formation and development of civil law and common law, judges discretion showing different trends, but with the development of global integration, learn from each other and the two legal systems integration, development of judges discretion growing consensus. The presence of the judge discretion has its inevitability and rationality, experts and scholars on the discretion of the judge never stopped, mainly because of its focus on the legal certainty of value. General, abstract legal language fuzziness, legal norms, the judges need to be specific in practice, visualization, and thus applicable to the case in the trial; uncertainty, hysteresis characteristics of the law, leading to its relationship with the social diversity resistance, phase change out of touch, only use discretion of the judge, to make the appropriate interpretation of the law, in order to guarantee the applicability of the law. The presence of a judge has discretion is an objective fact,and its presence can overcome the lack of written law, but it is extremely easy to be abused, countries are taking measures to regulate it, yet both sought flexibility can be limited within reasonable limits, for example, complete legal system, strict legal procedures, regulations and so mature evidence that China is taking a case guidance system, which is our initiative, not de facto model can learn from it and the Western countries, jurisprudence different systems, case guidance system for judges refer cases to provide referees, judges decide cases specific guidance can be more scientific and regulatory discretion of the judge, while the unified standards of justice,improve the quality and efficiency of judges and other aspects also play an important role.Our country is the statute, the statute is the main source of law is the main basis of the referee judge cases, factors of historical and cultural traditions, and other national systems, such as the formation of our country does not like the precedent system of Western countries. In order to overcome the lack of statutory and regulatory discretion of the judge, of the establishment of unique Chinesecharacteristics case guidance system, the judge judge when similar cases "should refer to" guiding case, the system has great significance in the process of judicial reform in our country. Of course, the case guidance system established time soon,the inevitable shortcomings, the effectiveness is not clear, lack of authority, seriously affecting play a guiding case "guidance" function; guiding case compile the program is too administrative, utility, can not guarantee the case quality and efficiency;supporting mechanism case guidance system is imperfect, lack of supervision,incentives, clean-up procedures, the probability of guiding case is applicable not meet expectations, practical form guiding case verifies its limitations. Lack of case guidance system needs to keep in practice to be perfect, clear it of the fact that binding, strengthen internal restraint mechanism, weakening administrative guiding case selection process, improve the supporting mechanisms to promote case guidance system functioning adequately correct guidance justice, science and regulatory discretion of the judge, to achieve justice unity, co-same sentence.