| The discretion of the judge is a subject of great concern in the theory and practice of the law.The effective exercise of the judge’s criminal discretion is conductive to the protection of legal interests and the realization of a fair case,and its value cannot be ignored.Generally speaking,the operation of judge’s criminal discretion in China is indeed orderly and healthy,and has been making great contributions to the construction of rule of law and the long-term stability of the country in the practice of criminal justice.However,the criminal discretion of judges in our country the right to the relevant system construction is not perfect,the exercise of judge’s criminal discretion whether in legislation or judicial,there are problems,it will affect the authority of the judiciary,but also to the credibility of the judiciary has brought great challenges.In order to ensure judicial justice,safeguard judicial authority,the judge’s criminal discretion inevitably should not be absolute freedom or any case freedom and discretion freedom must be law expressly authorized or to make up for the lack of legislation under the condition of freedom.Therefore,in order for judges to exercise effective discretion and achieve better judicial justice,we must guarantee and regulate judge’s discretion in criminal matters.This paper first analyzed the basic theory of the discretion of the judge,the judge discretion meaning,analysis of discretion independence,limited judicial discretion and characteristic,and study the discretion to fill loopholes in the law,justice and other aspects of the function,fully demonstrated the judge discretion always exists and necessity;Secondly,based on the understanding of judges’ discretion in different legal systems,we extend our horizons to extraterritorial views,hoping to provide some inspiration for the rational regulation of judges’ discretion in China.Thirdly,the present situation of the guarantee and regulation of the discretion of the judges in China is analyzed,and the reasons for the existing problems are analyzed.At present there exist many problems in the judicial activities,the judge has the right to be free planting use arbitrary or without restriction,different judgments have occurred,not only damage the case of justice,destruction of the stabilization,theLaw reduced the credibility of justice,even severe persecution of the law authority,cause people to lose confidence in the law our country needs,through a variety of system security and the regulation.Finally,suggestions for the protection and regulation of the exercise of discretionary power are put forward,hoping to reduce or even avoid the abuse of discretion of judges,give full play to the positive significance of free planting rights,ensure fairness and justice in judicial activities,and enhance judicial credibility. |
