法官的自由裁量权与司法正义

The Judge's Discretion and Justice

自由裁量不仅是英美法系背景下的法官造法,更是法官根据法律(包括司法解释),依据法庭查明的事实,在个人法律意识支配下做出裁判的过程。自由裁量是司法实践中所必需的,它不仅是法律所赋予的一种权力更是法官所应承担的一种责任。自由裁量不仅仅是依照法律和事实所作出的,还受到个人法律意识的支配,因此要通过规范的培训提高法官素质,从而防止自由裁量异化。自由裁量作为裁判案件的过程,其结果在于得出适当的判决和裁定,以实现法律效果和社会效果的统一。

Tile discretion is not only a process of the judge - making law in the Anglo - American Law, but also a process of the judgment by judge＇s individual legal consciousness, in such process the judge should comply with the law and the identified facts hy the court. The discretion is widespread in the judicial practice, which is not only the judges＇power, but also the judges＇responsibility. The discretion is made not only in accordance with the law and the facts, but also by individual legal consciousness. Therefore the alienation of discretion can be prevented by the improvement of judges＇quality. In the judicial process, the objective of discretion is a judgment or a decision in order to achieve a unification between the legal effects and the social effects.