Abstract: Judicial discretion requires judges not only to be loyal to the law, but also to be good at using legal consciousness and legal thinking to creatively enforce the law. But for a long time, there has been a game between strict rules and discretion, and various viewpoints have changed. From the perspective of jurisprudence, this paper seriously considers the legal basis of judges' discretion, discusses the legal value of discretion, and puts forward some suggestions on how to exercise discretion in the future based on the current situation in China.
First, there are two views on judge's discretion.
Those who advocate that judges should enjoy discretion believe that the exercise of public power must be based on the existing rules, and the exercise of power is manifested in the application of rules, which should be legal and restricted. In view of the fact that the establishment and existence of judicial power itself is to meet the needs of reality, it is necessary to weaken the rigidity formed by the restrictions of rules. Whether it is to pursue the justice of a case or to supplement the loopholes in the law and overcome the rigidity in the application of the law, it is bound to urge the actual executor of legal norms or rules-judges to interpret the law and apply the law flexibly, instead of following the old rules. In addition, the law has vitality only through the interpretation and application of judges. Generally speaking, even in countries with a long history of legal system, its modern judicial model is to increase flexibility and expand participation.
Those who deny the judge's discretion think that any power should have a boundary, and the exercise of power must follow legal procedures and be supervised, while the exercise of judge's discretion means that the established legal norms or legal rules have lost their functions, thus fundamentally denying the existence of substantive standards. The exercise of judges' discretion is completely invisible to the public. In this way, the exercise of power and the supervision of the exercise of power are often vague, and there are no feasible and effective supervision measures. This is not only a threat to the controlled individual power, but also a great challenge to the whole social system.
We can't completely deny that the deniers of discretion are worried about unlimited power, but we shouldn't exaggerate the value of the procedure to an incalculable extent. But it is undeniable that the judge's discretion is indeed necessary.
Second, the necessity of judge's discretion.
(A) the inevitable requirements of the legal characteristics themselves
1, the so-called universality of law means that the law is based on the rational transcendence of general social facts and social phenomena, and the general attributes obtained according to most situations in social life can be applied to most situations in social life, and the same or similar judgments can be made for the same or similar situations at the same time. The generality of legal rules makes it hard to face the complicated social reality. The pursuit of formal justice in modern judicature has been worried about "vending machines" as early as Weber's time. The complexity of social life determines that the pursuit of formal justice by human beings is only a relative thing. In this way, it will inevitably make it impossible for judges to apply legal rules to the solution of specific cases in some cases. In other words, justice in specific cases cannot come from the universal justice of law. It is in this case that the customary universality of law will be sacrificed in a specific situation to meet the needs of realizing long-term individual particularity justice, and it is considered necessary to give up or relax the established requirements for the benefit of justice, although the order tends to be established and unchangeable. The universality of law has become the same here, and it is useless. Judges are endowed with this power, and can deviate from the literal meaning of the legal rules themselves by exercising their discretion, and try cases in a way that legislation may deal with this problem. The pursuit of special justice also improves the universal justice of law to a certain extent.
2. The lag of law and the variability of social development contradictions.
Law is a social norm that stipulates social order, and it is also a criterion for people to determine their own behavior standards. At the same time, an important social function of law is to maintain the existing social order and behavior rules unchanged, so as to establish and maintain a kind of expectation that can be roughly determined, and then it is convenient for people to judge and understand the results of their actions according to the law in social life, so as to determine the current behavior. This requires that the law should have certain stability and cannot be constantly changed. Otherwise, when people make plans or arrange transactions for the future, they will not be sure whether today's law will become tomorrow's law, and people will be at a loss in real life. Therefore, the contradiction between legal stability and social development arises, which leads to the lag of law in meeting the requirements of social development, and this stability of law inevitably conflicts with the ever-changing social development. Therefore, due to the inherent stability of law, it has a conservative tendency. It is this stable and conservative tendency that makes the established law conflict with some changeable and important social forces, and the law needs to pay a certain price. The emerging social phenomenon just challenges the blank of law. At this time, it is impossible to solve it immediately through legislative means, let alone not solve it. In this case, it is the only choice to use the judge's personal will, that is, the judge's discretion.
3. Limitation of legal language and complexity of things.
The content of legal language will change with the development of society. When the change of law lags behind the change of language meaning, there will be differences in understanding in the process of law application, which may lead to different understandings of the same word. Moreover, when legislators try to express legal norms in language to adjust social reality, they must take into account the contradiction between the infinity of legal adjustment facts and the finiteness of legal norms, so as to make legal provisions more concise and reasonable, and make legal language more open and inclusive to future events. In this way, a large number of abstract legal languages will be produced, and sometimes even vague languages have to be used. In some cases, legislators themselves often don't realize what they consider to be deterministic language and live in real society. Due to the above limitations of language, in the process of law application, judges can only make a definite definition and judgment on the language with vague possibility by virtue of their own rational consistency and according to the basic spirit of legislation and the principle of law application. This is due to the limitation of language, and it also provides a contextual explanation for the existence of judge's discretion.
4, the stability of the law and the uncertainty of the application of the law.
As Justice Holmes, who first questioned the certainty of legal provisions, said: "The life of law is not logic, but experience." Specifically, the uncertainty of law is manifested in the following aspects: first, the law itself has. Law is a combination of words. As mentioned above, the abstractness of legal language and its inevitable fuzziness and the language's requirements for context determine the uncertainty of legal norms themselves. The second is the uncertainty of social transformation in China. As a part of the superstructure, law is bound to respond to the change of economic base, and the uncertainty of social life reflected by reform and opening up determines the uncertainty of legal norms. The third is the uncertainty caused by the tension between our pursuit of western models and local resources. The process of China's modernization is a process of westernization. This is the social realistic background that since the reform and opening up, China's jurisprudence has gradually abandoned the jurisprudence of the former Soviet Union and turned to Europe as a template. In China, which is different from the western background, the legal creation activities based on the western paradigm will inevitably conflict with local resources, which will also lead to the increase of uncertainty of legal norms. As mentioned above, due to the richness and diversity of social life phenomena and the relativity of human understanding, it is impossible for the law to exhaust all situations and stipulate them. The legislation here is only a principled provision. However, in the process of applying specific laws, the verdict of specific cases sometimes needs to consider all aspects of details. In addition, in trial practice, the examination and judgment of evidence and the application of law are also inseparable from the subjective factors of judges and the objective conviction of judges. For example, in criminal judicial activities, there is often a critical state of crime and non-crime, and a critical state of punishment and non-punishment, which requires judges to make their own judgments on the application of law. Especially due to the specific special circumstances of the case and the subjective influence of the criminal suspect, it is more necessary for the judge to make the most reasonable and legal judgment on the sentencing range of the same crime stipulated in the criminal law according to the objective facts and the special circumstances of the criminal.
(B) the judge's subjective initiative requirements
Legal activities are not independent of people but automatically apply to objective facts. They are not a set of mechanical program operations. As an independent individual with interests and professional knowledge, judges have the conditions and desire to participate in the process of law application. As scholars have pointed out, if people can make the legal provisions accurate enough to cover all possible situations without any explanation, and if judicial personnel do not need to weigh and act cheaply according to different cases and different litigants, machine justice can replace human justice. However, "no law can be so precisely defined to avoid any interpretation problems, and no law can be so precisely defined to cover all possible situations". Therefore, the law will inevitably leave limited autonomy for those who implement this law, and the rule of law does not exclude human factors. In fact, "even in the case of strong legal provisions, jurists can't be like a meat grinder: the raw materials of the provisions and facts are put on top, and the stuffing of the judgment is output below, keeping its true color and original flavor. Legalists' loyalty to the law is not so mechanical. They also have secular desires, and their judgments will be stained with subjective colors. "Therefore, the application of law should be a process in which judges combine legal basis with objective facts. In the process of law application, the judge's subjective will is the key connection point. Whether and to what extent there is a specific connection between legal basis and objective facts requires judges to use their own subjective will to make judgments, that is, judges need to make judgments according to their own discretion. Therefore, giving judges discretion is to give them room for free activities, which is consistent with the impulse of human nature to actively use will. This is also a necessary condition for the smooth progress of judicial activities.
Judges conform to the rational will in the process of applying the law, which provides a guarantee for judges to exercise their discretion correctly and also provides a guarantee for the existence of the judge's discretion system. As for the rationality of the judge's will in the process of law application, it can be explained from two aspects: the internal subjective constraint and the external objective constraint of the judge. Subjectively speaking, due to the great spiritual influence of the Bible in western society and thought, this provision also directly affects the formation of judges' quality in modern society. In addition, in the modern sense, following the principle of seeking truth from facts and handling things rationally should be the minimum professional requirements of judges. The professional nature of judges requires judges to think more rationally. From the external objective constraints of judges, the litigation procedure of modern society ruled by law also provides a platform and support for judges to hear cases fairly and justly, and sets up supervision and constraints for unfair and unjust cases. Therefore, constrained by the internal and external conditions of judges, we have every reason to believe that in this case, judges are the embodiment of justice and fairness, and judges perform their duties in accordance with the spirit of justice and rational will. As a result, the dispute resolution mechanism has got rid of the disadvantages of the judge's personal subjectivity and arbitrariness, and the requirements for handling specific cases tend to be fair, civilized and scientific. This also provides a suitable subject for the exercise of discretion, and judges provide protection for the granting and exercise of discretion with their own quality. This requires the judge to explain the reasons and justifications for each case when exercising his discretion, so that the case can get an ideal result. Especially in the contemporary society ruled by law, it is particularly important for judges to emphasize respect for human values and explain the reasons for compulsory judgments. Therefore, under the guidance of rational will, the judge will exercise it cautiously and rationally in accordance with the law, give full play to the advantages of discretion, and avoid subjective assumptions and the spirit of violating the law.
Third, the legal value of the judge's discretion.
Judge's discretion is an indispensable way and form to realize legal value, whether it is justice, efficiency, security, human rights, etc. , is the value of the law rather than the value of the judge's discretion. To discuss the value of judge's discretion, we should first examine the function of judge's discretion. As mentioned above, the judge's discretion has the function of making up for the contradiction between the universality of law and the individuality of facts, the contradiction between the lag of law and the variability of behavior, the contradiction between the limitation of language and the complexity of things, and the contradiction between the stability of law and the uncertainty of law application. All these functions are to realize the value of law. Therefore, the value of the judge's discretion is to realize the value of the law, and the first value is to realize the justice value of the law, even if the parties get a fair judgment in a certain period of time through fair procedures. In the process of realizing justice, we must also realize the balance between procedural justice and substantive justice, between universal justice and individual justice, and between justice and efficiency.
At present, Chinese judges still need to pay attention to substantive justice in the process of exercising their discretion. We should not only attach importance to procedural justice as the guarantee of substantive justice, but also consider the value of procedural justice itself. However, more attention should be paid to prevent one-sided procedural justice from becoming an excuse to undermine substantive justice, and to prevent the role of justice from being exaggerated. Procedural justice does not necessarily lead to substantive justice. Procedural justice can only ensure that substantive justice has the greatest possibility of realization, but it cannot guarantee a fair judgment result, because "it is not only the procedure that affects the result, but also the illegal factors such as the judge's education mode, admission mode, income and social treatment, including the judge's background and other judges' individuals, may affect the judge's independent judgment. "When judges exercise their discretion to weigh procedural justice, they must also fully consider the protection of vulnerable groups. Emphasizing equal protection or equal arms is the minimum requirement of procedural justice, but the problem is that the economic and cultural development in various parts of the country is very uneven at present. In the vast rural areas and remote central and western regions, many litigants are rural residents and even illiterate. If there is no special system protection for the disadvantaged groups and the disadvantaged groups, the court will easily become the arena of litigation skills, and it is difficult for the strong and the weak to achieve the balance of substantive justice in the face of formal justice, which is absolutely contrary to our original intention. Furthermore, the judge's discretion is also to maintain the balance between general justice and individual justice. Sometimes sacrificing individual justice in order to safeguard universal justice will fundamentally violate the purpose of human pursuit of justice. Therefore, it is an important value of judge's discretion to find the balance point between general justice and individual justice while seeking the breakthrough point of general justice.
Fourthly, the present situation and perfection of the scope of judge's discretion in China.
(A) the status quo of the scope of judges' discretion in China
There are two problems that the society reacts most strongly to the judge's discretion. First, judges abuse their discretion because of favoritism; Second, the judge did not realize substantive justice well in the process of implementing discretion. At present, the judge's discretion is not restricted or weakened, but strengthened and standardized. To investigate and evaluate the discretion of judges in China, we should base ourselves on the following angles, focusing on the long term, rather than seeking perfection and blame. First, we should be brave enough to face the problems existing in judicial work, especially the problems of discretion. Great achievements have been made in judicial work, most cases are fair, and the mainstream of the team is good. This is a conclusion that can stand the test of facts. However, it must be admitted that we do have very few cases, and a very small number of judges have either lost their judgment or discretion, or been confused by the abuse of power by money and color, or have been forced by powerful people to bend the law, resulting in one problem or another. Although the number of these cases is small, they defile the image of the court, damage the judicial authority, and aggravate the people's criticism of judicial injustice. Second, we should fully understand the methods and perspectives of different people looking at different problems. Influenced by traditional culture, people's perception and understanding of judicial justice is largely limited to the judgment of individual cases. Judicial justice will not become news, but judicial injustice will certainly become news. Many times, for the parties, seeking judicial solution is the choice after exhausting other remedies, or even a solution without any way, which often places high expectations on the court. Once the wishes and demands of the parties are not met in time, they will feel hurt and easily think that the justice is unfair. In addition, look at the difficulties faced by judicial work objectively. For a long time, most grass-roots courts in China are faced with the problem of "two lines of revenue and expenditure". In order to reduce the burden, many local governments have adopted the method of collecting and paying on behalf of the court, allowing the court to make up for the gap left by the financial allocation with legal fees. Courts are highly dependent on the lawyers' fees collected from daily operation to infrastructure construction.
The scope of application of judge's discretion
Based on the necessity and practical significance of the judge's discretion, it should be applied to the judge's discretion in the following situations: (1) because of the generality of the law rather than the situation stipulated by the law; (2) Two or more conflicting premises can be used to solve a problem, but a choice must be made between them. (3) Although there are rules or precedents in the cases accepted, the court refuses to apply them when exercising its power, considering that the rules or precedents are generally imperfect in this factual background, that is, the contradiction between "reasonable" and "legal". Judge's discretion is defined as the understanding and interpretation of jurisprudence with rational will in accordance with the normal development process of law application, and it is also the interpretation of the law chosen by the judge according to the legislative spirit and legislative intention, and it is the supplement and perfection of the law itself. This kind of supplement and perfection is necessary for both the law and the judge.
Improve the judge's discretion
The judicial organ shall make a fair judgment on the accepted cases based on facts and in accordance with the law, and shall not be subject to any direct or indirect improper influence, encouragement, pressure, threat or interference, no matter where these influences, encouragement, pressure, threat or interference come from and for what reason. "Judges are not independent, and discretion is impossible.
1. Ensure the independence of judges. The first is to cancel the internal request system of cases. The system of asking for instructions within a case contains two meanings. First, the higher and lower courts ask for instructions, depriving the parties of the right of appeal in disguise, making the higher courts directly or indirectly intervene in the trial of the first-instance cases, which will inevitably turn the nominal first-instance into the de facto second-instance and invalidate the basic litigation principle of the second-instance final appeal. The judge's discretion in first-instance is gone and must be abolished. The second is to strengthen judicial guarantee. Establish a professional security system to ensure that judges independently exercise their functions and powers according to law, and establish a classification management system for all kinds of court personnel and a judge selection system. Judges of lower courts will be nominated by higher courts and will not be punished for non-statutory reasons. Improve judges' salary and treatment, enhance judges' sense of professional honor, increase infrastructure investment in grass-roots courts, improve the modernization level of court materials and equipment, strengthen the guarantee of court funds, and implement unified provincial financial guarantee and special subsidies from the central government for the funds of people's courts below the provincial level.
2. Improve legislation and judicial interpretation.
Compared with civil trial, the discretionary space of criminal trial should not be too large. Criminal legislation should define the applicable penalty methods more clearly, stipulate as few kinds of punishments as possible for the same crime and the same plot in the specific provisions of criminal law, and narrow the legislative scope of the same kind of punishment, so as to reduce the flexible space of criminal sentencing discretion. In the specific provisions of China's current criminal law and judicial interpretation, the part involving sentencing generally stays at the "starting point" and determines different "sentencing ranges" by distinguishing different circumstances, and basically does not involve how to choose different types of punishment and at which point to choose sentencing standards within a sentencing range. The statutory penalty for the same crime should not be too large. If several penalty ranges can be applied to a crime, specific provisions should be made on the applicable circumstances of each penalty range. If the circumstances that should be given a heavier or heavier punishment overlap with those that should or can be given a lighter, mitigated or exempted punishment, the corresponding more specific circumstances and selection order should be further set so that the judge can accurately choose and apply them. Whether in civil or criminal legal trials, the perfection of legislation and judicial interpretation can objectively restrict and regulate the exercise of judges' discretion.
3. Strengthen and standardize project control.
Its basic idea is to standardize the discretion through the justification of the procedure and promote the rationalization and justification of the discretion. There are several basic ways of program control: first, determine the appropriate program rules and stipulate which programs are appropriate and which programs are not. For example, no one can be the adjudicator of his own case, anyone's opinions must be heard in advance when his rights and obligations are affected, and any ruling must be based on the evidence and reasons obtained at the hearing or court session, and so on. These are the basic rules of due process. Second, improve the transparency and visibility of the discretionary process. That is to say, in the procedure, the reasons for the judgment, the legal norms on which the judgment is based, relevant precedents and guiding cases, especially the reasons for the judge's discretion, should be publicized as much as possible, and the sentencing reasoning system should be implemented and strictly enforced, thus forming judicial rationality and strengthening the function of judicial feedback reality. Thirdly, in the procedure, the parties or the relative person should be given appropriate rights to properly restrict and supervise the judge's criminal discretion. Fourth, with authority. In other words, the abuse of discretion can be prevented by setting up supervision power, such as the post-appeal supervision power of higher courts. When exercising major discretion, it must be submitted to the judicial Committee for discussion. The power of the collegial panel can be restricted by the power of the judicial Committee, and the members of the collegial panel can change the case undertaker's personal marking to cross marking. These controls must be carried out in the program and realized through the arrangement of the program.
4. Promote the professionalization of judges. Strengthening the professional quality and improving the professional level of judges is the most basic point to standardize the discretion. At present, China is steadily promoting the professionalization of judges, which is an extended and gradual reform measure. The measures that have been implemented and will be implemented include reforming the source of judges, implementing the system of selecting and appointing presiding judges, and strengthening education and training. , are gradually narrowing the gap with the professionalization of judges through the increase in the number. The judge's discretion is directly proportional to his own quality and the public's trust in him. In the process of establishing trust relationship between people and judges through judicial practice, as long as the minimum reasonable doubt is not eliminated, it is an option that cannot be ignored to generally adopt legislative means to reduce judicial discretion. We require judges to actively perform their duties within reasonable limits in the process of hearing cases, and organically combine "legality" with "rationality", which should be based on rules and beyond them. A perfect judge's discretion not only needs to be limited, but also needs to be given; Not only rules are needed, but also inherent certainty is needed; Not only trial-level supervision is needed, but also the independence of judges is needed. Without power, there is no responsibility, and without responsibility, there is no order. While praising the value of discretion, we also expect judges to support the just duty entrusted by history with wisdom and conscience.
Verb (abbreviation of verb) conclusion
Based on the basic theory of jurisprudence, the existence of judge's discretion has its rationality and legal value. Of course, we also see the disadvantages of the judge's discretion. The correct exercise of judges' discretion and the maintenance of social fairness and justice need to be improved under a good legal environment and supervision system. There are still many shortcomings in the discretion of judges in China, but only by perfecting legislation and strengthening the management system of judges can we ensure that the judicial environment of the whole society can truly achieve fairness and justice and establish people's belief in the law.