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On the Discretion of Judges and Legal Regulation

Author: ZhangXueLing
Tutor: YaoRongMao
School: Southwest University of Political Science
Course: Legal Theory
Keywords: Discretion of the judge Judge Justice Limit Power
CLC: D926.2
Type: Master's thesis
Year: 2011
Downloads: 195
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Abstract

Discretion of the judge has been a long-lasting indemnity new problems, which is a core role for the realization of the rule of law because the discretion of the judge, the key issues in the judicial system. Given the discretion of the judge the discretion of the necessary restrictions, the use of more and more countries, and continue to explore the most suitable mode of operation. Since the reform and opening up, China's rule of law has made remarkable achievements in the legal system of socialism with Chinese characteristics has been formed, the basic strategy of the implementation of the rule of law in China already have a solid foundation. However, due to the present stage is in the social transition, emerging difficult cases, judicial corruption occur, which limit the discretion of the judge become an important task of the current judicial reform in China. It is in this context, this paper based on the discretion of the judge's general theory and the actual situation in China, focusing on the focus of the problem of judicial practice in China face discretion of the judge. Its purpose is to explore the feasible path of how to regulate judges discretion. In addition to the Introduction and conclusions is divided into four parts: Part I: mainly discusses the basic concepts of the discretion of the judge, the characteristics of the discretion of the judge the discretion of the judge's role. That the discretion of the judge is bound by the law and have some flexibility in the objective existence of judicial power, can play the role in the interests of justice and the realization of justice. Part II: focuses on the scope and principles of our judges discretion, discusses the judge the discretion of the range, mainly from three angles, that is, from the point of view the process of the administration of justice; clear whether the case can be regulation cover the situation; Judging from the legal department involved in the case and were discussed. Explore the principles, the author summarizes the analysis of theoretical and practical elaboration of principles, that the exercise of the discretion of the judge's principles include the principle of legality, the principle of rationality, the principle of impartiality, openness principles, procedures and principles of justice. Part III: The author discusses the improper exercise of the performance of our judges, that judges improper exercise of the discretion of the three cases, that is, without the exercise of discretion; wrongful exercise of discretion; abuse of discretion. And causes boils down to three points, that is, the law itself is not complete; judicial system is not independent; judge the overall quality is not high. Finally, determine the standard of improper exercise of judgment, that, in line with the reasoning of the rational man; for general rational person accepted; enforceable; meet the values ??of fairness and justice. Part IV: First, the analysis of the necessity to regulate the discretion of the judge, that is, based on the weakness of human nature and the characteristics of power, the discretion of the judge must be regulation. Second, the reality of our country to regulate it is clear that, due to the lack of clear and detailed requirements, our judges excessive discretion. Finally, the combination of our judicial practice regulation path. From the to strengthen legislation, tight judicial proceedings, the introduction of case law, improve the quality of judges, and improve the people's jury system and legal supervision and other aspects are discussed.

On the Discretion of Judges and Legal Regulation

Abstract

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