Research On The Standardized Exercise Of Judges’ Discretion In China

Lawmakers find the problems that need the law to solve and prevent in accordance with present social situation and corresponding historical experience,and predict possible social development situation in a period of future,and then make the law.The law always cannot cover all possible social situations.Therefore,it is reasonable that the law itself has the characteristics of hysteresis,fuzziness and inadequacy.As a result,as a judge,the judge will always encounter some cases that can not find the corresponding specific legal provisions to adjudicate.Such cases fall outside the area covered by the legal rules and make the judge face the dilemma of the application of the law,which is hard cases.In order to make a judgment on hard cases,we have to resort to the exercise of the judge’s discretion.Whether from the theoretical level or the practical level,the discretion of the judge has its rationality,which is of great significance to the realization of judicial fairness and justice.Especially in the trial of hard cases,in order to realize individual justice,the judge’s discretion plays an irreplaceable role.Judges’ discretion is a double-edged sword.Properly used,it can serve the judicial practice,but once it is out of reasonable control,it will inevitably damage the judicial fairness and justice.So the key question is how to ensure that judges exercise their discretion within reasonable limits.At present,in the judicial practice of our country,there are a series of problems such as misuse and abuse in the exercise of the discretion of judges,so it is very necessary and urgent to form a set of reasonable mechanism to limit the discretion of judges to ensure the standard exercise of the discretion of judges.Many jurists put forward their own theories on the issue of the discretion of judges,and there have been many controversies,among which the most well-known one is the dispute between Hart and Dworkin.The discussion of a judge’s discretion cannot go around Hart and Dworkin.Hart’s theory of rule and Dworkin’s wholeness interpretation theory are significant on how to regulate the discretion of the judge in our country,the research and application for their theories will contribute to clarify the boundaries of the judge discretion in our judicial environment at the theoretical level,improve the system design of judicial trial,and then,the exercise of the discretion of judges in China will become more standardized and scientific.So,this paper regards Hart and Dworkin’s discretion theory as the theory reference,combining the reality of the exercise of discretion of the judge in our country,discusses the path of the standardized exercise of discretion of the judge in our country.In short,no matter in the country of written law or the country of case law,the discretion of the judge is inevitable,but the discretion of the judge must be reasonably restricted,in order to really play its positive role in the realization of judicial fairness and justice,overcome its negative impact.