Chief trial judge to exercise discretion and Regulation

Whether facts or applicable Law, the judge should adhere to the boundaries of the exercise of discretion, correctly handle the judicial, legislative and executive powers between the three. On the one hand, judges in the interpretation of the Law should respect the legislative intent of the process . On the other hand, the exercise of discretion, the judge should take judicial power and the boundaries between the executive power

In the administrative trial, the exercise of discretion by the judge, statute digestion and transformation of society can be tension between the Law applicable to a more inclusive and applicability, are conducive to the realization of justice cases. However, the discretion of the judge If exercised properly, will result in arbitrary and despotic, reducing the credibility of justice. Therefore, judges must exercise discretion and restraint in the dynamic balance between.

Judicial Discretion space exists

In the administrative trial, whether findings of fact or application of Law, are accompanied by the exercise of judicial discretion. In fact finding, although the line of Appeal and the Supreme Court of Appeal on the line with regulations of the evidence issue certain rules of evidence , but the judge in the evidence, cross-examination, the certification process still enjoys greater discretion, pArticularly in the administrative proceedings the judge proof of the mastery of standards. Our Law does not prove that the standard of administrative action to make it clear that the provisions only if administrative acts "evidence," while applicable laws and regulations are correctly in line with legal procedures, the decision to maintain, for the "inadequacy of essential evidence," administrative action, the decision to withdraw or pArtially withdraw. However, due to "evidence" and "inadequacy of essential evidence "the two concepts does not have a clear meaning, and that the two concepts and not exhausted all the circumstances of administrative acts," evidence "and" inadequacy of essential evidence "may exist between the two conditions are many other conditions. the resulting administrative trial judge facts of the case have a greater discretion.

In this, the judge in applying the law have discretion mainly in three aspects. First, select the referee basis. According to Bank v. Law fifty-three first administrative cases on the People's Court with reference to rules, regulations, courts enjoy the "opt in power": the view that compliance with laws, regulations, rules and regulations shall be applicable, otherwise not apply. can be seen, in determining the applicability of "rules", the judges have discretion. Second, the interpretation of the law. in the law shall not be clear or specific circumstances, the judge will need to use discretion to interpret the law. Third, the additional legal loopholes. As the law is lagging behind and undistributed sex, the trial judge in the administrative law does not often face regulations or laws despite However, specific provisions should not apply to a case, requiring the judge through the use of habit, theory and basic principles of administrative law, etc. make up the legal loopholes.

The exercise of judicial discretion Problems

From the administrative trial judge to exercise discretion to see the process, mainly in three aspects: first, the goal of the exercise of discretion is not clear. Embodied in three aspects: First, a negative exercise of discretion, that discretion Since it is an option, then for the same case can be made by the referee can make this kind of referee, especially in the law does not specify the circumstances, no matter how decisions are legitimate and reasonable, so give up the case to find the most suitable the best judge of the situation the program, slack application of the law. The second is to refuse to exercise discretion in adjudicating cases, the existence of two or more face in the process and are able to make sense of the verdict, to avoid the case was commuted or retrial, often likely to give up the exercise of discretion to ask for instructions to a higher court or other means to persuade the pArties to avoid risk of withdrawal. Third, the abuse of discretion, not based on just and fair consideration, but for some purposes, beyond the law scope of discretion, or within the limits prescribed in the law was intentionally lost fair and just discretion. In this case, the power of discretion as a tool for rent-seeking.

Second, the process of the exercise of discretion is not made public. Administrative trial, the judge discretion to exercise transparency and visibility is not high, the concentrated expression embodied in Article Only the results of the judges discretion, but it is difficult to fully reflect the judges discretion to consider factors and the final decision of the reason.

Third, the results of the exercise of discretion is not uniform. The discretion of the judge is essentially a lawful and reasonable within the power of choice, reasonable exercise of discretion one of the most basic requirements of the situation is the same for the same treatment However, in practice, "co different contractors," the situation remains widespread. It is precisely because the judge found in the fact that the course of the exercise of discretion standard is not uniform, led to similar cases come to different judgments affecting the application of law unity.

Links to Research Papers Download http://www.hi138.com

How to regulate the discretion of the judge

First of all, should abide by the boundaries of the exercise of discretion. Administrative trial, whether facts or applicable law, the judge should adhere to the boundaries of the exercise of discretion, correctly handle the judicial, legislative and executive powers between the three relations. On the one hand, judges in the interpretation of the legal process should respect the legislative intent. the legislation itself is a measure of interests, the selection process, if the legislature has made a choice, the judge should keep it to respect, rather than their own understanding of the law instead.

On the other hand, compared to civil and criminal litigation, administrative proceedings pArticularity is itself a recognized fact in the administrative body made on the basis of legal decision, the trial judge exercised administrative discretion, judicial power and shall hold the boundaries between the executive power, judicial power can not replace either the executive power, can not indulge in the abuse of administrative power. If the process of ascertaining the facts, although the court must have discretion, but the court can determine their own to replace the Chief of the facts agency findings of fact is questionable. Another example of administrative judges discretion in the review process, should avoid excessive intervention of the executive power which led to the abuse of judicial discretion.

Second, the exercise of discretion should follow the rules. Overall, the exercise of discretion judges should meet the legitimate and reasonable principles. Legitimate means to exercise discretion, the judge can not exceed the limits set by law, scope and so on. Reasonable means judges the exercise of discretion should be the purpose of compliance with all rules, consider the rules of proper and equal treatment rules. Purpose and Rules refers to the exercise of discretion, the judge must meet the legal discretion granted to the purpose of pursuing the same time with the purpose of the law consistent. legitimate consider the rule is that the judge in the exercise of discretion, should consider the relevant factors and not by independent factors. equal treatment rule is that the judge must be equal and impartial exercise of discretion, be subject to the same case the same treatment to different situations differently.

Again, discretion should be exercised to strengthen the constraints. Can enhance instruction and strengthen the reasoning of judges both to strengthen the constraints of the exercise of discretion, the former for the exercise of judicial discretion to provide "reference", which can be supervision of a judge to exercise discretion to avoid the wanton. Supreme Court, "twenty-five" reform outline clearly to "establish and improve case guidance system", but the Supreme Court published in the Gazette only a limited number of administrative cases, and more concise, The attached decision by the lack of convincing reasons to explain the insufficient legal guidance to other courts in similar cases in the judges discretion. therefore required to further improve case guidance system, give full play to typical cases in regulating the exercise of the discretion of the judge's active role .

In addition, the instrument should be further enhanced, said the referee reason to strengthen the supervision of the exercise of discretion. Enhance the said Article rational, comprehensive display of the conditions of the judges discretion, process and results, not only can make their own judgments for the judge to review and re- reflect, as far as possible eliminate unreasonable to judge, but also inspection and supervision of the exercise of judicial discretion is "rational", is to follow the basic logic and rules of thumb to prevent the arbitrary exercise of discretion.

Links to Research Papers Download http://www.hi138.com