The legal system, mainly based on continental legal system, is practiced in the mainland of China. Constituting laws is a uniquely valid approach to laws. Therefore, the syllogism, consisting of legal principles, case fact and judgment, is commonly applied to judge cases. The necessity to produce a valid judgment depends upon a definitely legal evidence. As a result, although discretion in the premise of legal rules in our country, it does not mean there is no discretion. In the field of criminal justice system, judge’s discretion roots in The Criminal Law of People’s Republic of China and The Criminal Procedure Law of People’s Republic of China (CPL named for short in the following). Generally speaking, the discretion includes the entity and the procedure.
I. Discretion of the entity
Discretion of the entity refers that judges hold a right to judge and assess with regard to substantive problems in the process of criminal procedures or those problems in a direct relation to substantive benefits of parties. In terms of stages in criminal procedures, discretion mainly exists in the three stages, as taking evidences, judging facts, convicting and sentencing.
A. Discretion in taking evidences
As the law of criminal procedure in our country defines, the evidence mostly includes the notion and categories of evidences, requirements for applying evidences, gathering evidences, examination and judgment, quantifications and responsibility of witnesses, the protection for witnesses and their relatives and the like. As for taking and judging evidences, it stipulates prohibiting obtaining evidences illegally, examining and judging evidences in accordance to cross-examination and other principles. As for the objectivity, relevance and legality of evidences, the legality specifies types of linguistic evidences in illegal evidences. However, it has no provisions in relation to objectivity and relevance of evidences. In practical judgments, judges have much discretion in excepting illegal evidences, examining and taking evidences and other areas.
B. Discretion in judging facts
As for judging facts, criminal procedure in our country regulates evidences become actual facts only after being examined to be true; the accursed can not be convicted to be guilty and be punished if only the accused makes a statement but without other evidences; the accused can be sentenced if evidences are sufficient enough without statements from the accused. The judging standards concerning on “fact” and “judging to be guilt”are comparatively vague. At the same time, it is noticeable that standards on cases transferring to be examined and prosecuted, bringing in an indictment, judging in criminal procedures are all “evidences being truly sufficient”, which should be judged and evaluated by judges and public prosecutors in themselves. Thus, judges’s discretion in the mainland is relatively powerful.
C. Discretion in convicting and sentencing
According to The Criminal Law of People’s Republic of China and its amendment, an action, whether results in a crime, which kind of crimes, which kind of punishment should be given, mainly is judged by the judge. Referring the conviction, criminal law in our country stipulates factors which produce a crime and criminal range in accordance to kinds of crimes. Furthermore, specific application to criminal punishment also is regulated. Nevertheless, the subjective situation of the accused, which leads to a crime, is so abstract to be judged. Moreover, theses crimes are so many and complicated that the distinctions among them commonly are not clear. For instance, the relation between intentional crimes and negligent crimes, criminal discontinuance and criminal attempt, which are inter-crossing and co-petitive, is judged and analyzed commonly by theories. It is difficult to establish a set of efficient standards to judge by criminal laws. As a result, judges generally would make a judgment in terms of their own analysis and evaluation in practice. As for the sentencing, the domain of criminal punishment in our country generally is adopted between the lowest level and the highest level in accordance to discretion of case facts. The degree of discretion is relative high. Furthermore, “cases of gross violation”, “cases of a more serious nature”, “minor cases”, “cases with serious consequences”, “the amount being relatively large”, “the amount being greatly large” and the like in laws, become typical examples that judges hold the discretion in criminal legal system with regard to the sentence.
II. Discretion of the procedure
Discretion in the procedure refers that judges possess discretion on non-substantive things in the process of the procedure. With regard to public prosecution, criminal proceeding in our country is divided into registering, investigating, examining and prosecuting, the first instance, the second instance, executing and other stages. As for cases of private prosecution, the proceeding generally consists of registering, the first instance, the second instance, executing and so on. To sum up, procedural discretion largely lies in the stage of judgment and execution in cases of public prosecution and a whole process in case of private prosecution. In the light of trial proceedings, it can be divided into whether holding a hearing, what kind of trial proceedings to be chosen, determining relative issues concerning on trial proceeding, determining procedural issues in the execution and the like, which all represent judges’ discretion.
A. Discretion concerning on whether holding a hearing
Why this paper firstly discusses discretion on whether holding a hearing but escape from the acceptance is because people’s court would accept cases of public prosecution at the first instance. Thus judges have no choice whether these cases are accepted. However, they can decide on whether holding a hearing for cases of public prosecution after the examination. As for cases of private prosecution, CPL explains that cases of private prosecution, once accepted by people’s court, should be held a hearing. Therefore, deciding on whether holding a hearing means determining whether accepting such a case. In order to analyze, the acceptance of cases of private prosecution would not be involved in this present paper.
In the process of the first instance, CPL in our country stipulates conditions of holding a hearing for cases of public prosecution as having definitely accused facts and adding contents of evidences, lists of witnesses, copies or pictures of main evidences. Such conditions are procedural examination without little flexibility with regard to this rule. As a result, in the first instance of public prosecution cases, the nature of discretion concerning on holding a hearing is to judge whether materials in accepted cases are formally complete. In other words, judges’ discretion on whether holding a hearing is little. On the contrary, the conditions of holding a hearing for cases of private prosecution are definitely criminal facts, sufficient evidences, which have been involved in the entity. However, evaluating whether facts are definite and evidences are sufficient, is not specific. Furthermore, judges can not make a direct judgment as in procedural issues. Therefore, judges have more discretion in cases of private prosecution in the comparison to public prosecution cases.
In the process of the second instance, laws definitely regulate that judges could not hold a hearing except for cases counter-appealed by procuratorates, which is different from cases that should be held a hearing in the first instance. Judges have more choices in the second instance. As for cases, whose files have been examined, the accused of which have been questioned, parties, defenders and cognitors in which have expresses their views and that has been listened to, they need not to be held a hearing providing judges are convinced that their facts are evident. The substantive element of evident fact and definite authorization from laws represent that judges’ discretion is more than that in the first instance. It also indirectly induces that most of cases in the second instance are not held a hearing in practice.
B. Discretion concerning on what kind of trial proceeding to be chosen
It mainly refers that judges have discretion to select what kind of trial proceedings. CPL in our country stipulates general trial proceeding, simple trial proceeding and general-simplified proceeding once the accused confess his or her crimes. Applicable conditions in such proceedings mainly are determined by what kind of criminal punishment being sentenced to the accused, and further judged by judges.
C. Discretion concerning on relative issues in trial proceedings
During the proceeding, judges’s discretion mainly is represented through whether relative persons should evade, whether evidences should be explored for and examined to be true in the adjournment, the legality of evidences to be judged, whether new evidences would be agreed to be adopted, whether the judgment would be delayed once special situations appear in the trial proceedings, how to treat with behaviors that violate court orders and the like.
D. Discretion concerning on procedural issues in the execution
It is mainly involved in commutation, parole, serving a sentence out of prison for a time and so on. Changes of the execution are in line with criminal offenders truly showing the repentance and having no bad effect on the society. Except for judging from laws, these conditions finally would be evaluated by judges and believed in by them.
In conclusion, judges in the mainland have a wide discretion concerning on criminal judgment under legal framework since the domain of criminal discretion authorized by provisions has been generally introduced. The practice of discretion can not be the same because the mainland covers a large area and a large amount of courts are in the charge of. At present, differences resulted from judges using discretion properly become smaller by issuing judicial interpretations, so as to increase an operation on rules and by publishing more typical cases for guiding.