论法官自由裁量权的内在缺陷及效用

On the Internal Defects and Effectiveness of the Discretion of the Judge

由于法律本身的局限性,作为静态的法律与动态的社会现实之间存在着矛盾,为了适应社会现实的需要,各国法律赋予了法官自由裁量的权力。法官自由裁量权就是法官在案件裁决中的自由选择权力,但它的自由特性决定其本身存在缺陷。因此,只有有效地监督法官的这一权力,才能使法官自由裁量权发挥最大效用。

On account of the limitations of the law, there are some contradictions between the law and the social reality. In order to satisfy the social needs, the laws of all the countries have entrusted to the judges the power of discretion. The discretion of the judge is a kind of selective power freely belonging to the judge during the justice. Its characteristic of freedom determines that there are internal defects. Therefore, only if we supervise this kind of power effectively can we make the discretion of the judge exert the largest effects.