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On the criminal discretion of the judge

Author: LiXiuFang
Tutor: HaoAiJun
School: Taiyuan University of Science and Technology
Course: Procedural Law
Keywords: Judge Criminal Discretion Regulation
CLC: D925.2
Type: Master's thesis
Year: 2010
Downloads: 113
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Abstract

Because of the law itself the inherent lag generality, vagueness limitations, for judges left room for discretion. The discretion of the judge is a judge in the applicable law, some of the facts and the law on the basis of discretion to make a power of decision. Similarly, in the field of criminal law norms, due to the general terms of the criminal law, determined relative to the criminal provisions of the presence of criminal discretion is inevitable. Criminal discretion of the judge in a criminal trial does not provide legal or law defective, in order to achieve social fairness and justice, the judge should be authorized by law within, as appropriate, based on the specific facts of the case dealt with power, it is an intrinsic element of judges jurisdiction. Judge criminal exercise of discretion, and will help to overcome the defects of the criminal written law, and promote legal development, maintenance cases justice. In China gradually perfect the socialist rule of law, the criminal discretion of a judge is more and more attention. Criminal law reflects the national force maintenance of social relations, for the consideration of the statutory requirements of the Criminal Law, the law does not expressly provide judges with criminal discretion, but the fact of the judge in the criminal case proceedings have broad freedom discretion. However, due to the lack of effective understanding of the theory and system of regulation, criminal discretion is unlawful, unreasonable to apply a very serious problem, leading to corruption in the judiciary and judicial imperious, caused a great deal of influence on the authority and impartiality of the judicial. In view of this, this paper focuses on the criminal discretion regulation. This article includes the following four aspects: the first part, to do a brief introduction to the basic theory of criminal discretion. Drawn from the course of development in the discretion of the modern community of nations on the discretion of the concept, and then by the discretion of the concept derived from the concept of criminal discretion, and outlines its specific characteristics. The second part of the basis for the existence and value of criminal discretion of Judges. The specific criminal jurisprudence from the basis of universal jurisprudence to demonstrate the necessity of the existence of the criminal discretion foundation, then certainly its significance in a criminal trial. The third part of the analysis of the principles to be followed to exercise criminal discretion. From the principle of legality in criminal substantive law procedural principles of justice to the Code of Criminal Procedure, the principle of judicial independence, the principle of distinction 11 were introduced. The fourth part, for our judges in the exercise of the existence of the criminal discretion, put forward some concrete proposals. Improve the criminal legal norms, to establish the rules of scientific evidence, to protect the defendant's right to defense, to strengthen the reasoning part of the criminal verdict, the five aspects of the criminal discretion regulation to improve the quality of judges.

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