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关于法官自由裁量权的种类,从其行使的不同阶段这一角度,可分为两个事实认定和法律适用两个方面。第一阶段是事实认定,是事实审,追求真实性;第二阶段是法律适用,将事件归属于法律之下,是法律审,追求的则是合法性与合理性,包括法律解释、法律推理、法律漏洞填补等,最后由法官决定适用何种法律进行裁决。本文主要分析法官在审理案件时如何具体在适用法律阶段行使自由裁量权。
As for the types of discretion of judges, from the different stages of their exercise, they can be divided into two aspects: the recognition of facts and the application of laws. The first stage is the confirmation of facts, the trial of facts, the pursuit of authenticity. The second stage is the application of law. It belongs to the law under the law and is legal. The pursuit is legitimated and reasonable, including legal explanation and legal reasoning , Legal loopholes fill, etc., and finally by the judge decide what kind of law to apply for ruling. This article mainly analyzes how judges exercise their discretion in the legal stage in the trial of a case.