| In the practice of civil trial,the importance of the judge’s discretion becomes increasingly prominent.The defects of statutory law are objective,and judges need to exert their initiative to make up for the deficiencies of law.Judges’ discretion is an important way to resolve conflicts and promote social harmony by using grassroots wisdom and local custom.There are many theories on the exercise of the judge’s discretion,but few papers demonstrate how to regulate the judge’s discretion in civil trials to restrict and safeguard the exercise of the judge’s discretion.The author starts from the historical development,concept disputes,trial practice of our country and so on to seek the direction of the regulation of the discretion of judge.This paper consists of five chapters,and the main contents are summarized as follows:Chapter One,the basic theory of the judge’s discretion exercise regulation in civil trial.This chapter starts from the origin of the judge’s discretion and makes an overview analysis of the judge’s discretion.The necessity of the existence and regulation of discretion is analyzed,and then the meaning of regulation of discretion is put forward.Chapter two: The present situation of judge’s discretion in civil trial.Based on three cases,this chapter finds that discretion exists in fact identification,law application and procedure selection in civil trial,and there are some problems when judges exercise discretion,such as different judgment in the same case and dare not to use discretion.One of the main reasons is insufficient regulation.Chapter three,the current situation of the regulation of the judge’s discretion in civil trial.Law is an effective means to restrain discretion.In the restraint system,the case guidance system and the discretion disclosure system are effective means to restrain the discretion in the existing system.The wrongful case investigation system is the foundation of judicial justice,investigating the abuse of discretion.Chapter four,the problems in the regulation of the discretion power of judge in the civil trial of our country.The system of case guidance and reason publicity is an effective system to restrain the discretion of civil judges,but the guidance cases are lack of mandatory,there are few,targeted problems;There are some problems in discretion publicity,such as lack of transparency and lack of focus on the reasons for discretion.In the process of the development of discretion,the unclear definition of the wrong case will make the case be wrongly characterized as wrong case and be investigated.Chapter five,the perfection of the regulation system of the judge’s discretion in civil trial.The Civil Code and the corresponding legal interpretation should be perfected.It is necessary to construct a more effective case guidance system and a more transparent reason announcement to restrict the discretion.The judges should be encouraged with salary and honor for their application of creative guidance cases.It is necessary to clarify the definition of wrongful cases,the reasons for accountability,and properly handle the relationship between wrongful case investigation and lifelong responsibility system. |
