Interpretation Obligation

The interpretation obligation is one of the basic systems of civil litigation in the continental law system. On the base of the full guarantee of main right of involved party, in order to find the fact of the case and realize the legally deserved rights that the involved party wants to protect, the interpretation obligation that based on the adversary doctrine and dispose doctrine is necessary to be established. Research on the interpretation obligation, which offers channel for the information exchange or the communication between involved party and the court, the jurisdiction of the court can coordinate with the litigation of the party; the theories about civil litigation can be improved. With the combination of analysis method and civil judicial practice, the goal of juridical justice and benefit can be reached. For enriching the theory of our civil litigation, this paper introduces the evolvement of the interpretation obligation in civil litigation around the world, analyzes the foundation of the interpretation obligation, discusses the regulation of its establishment, and elaborates its constitutional and litigant base. Integrating the actual situation of our nation, the author have put forward the tentative idea of establishing our own the interpretation obligation so as to direct judicial practice. Besides the introduction, the essay is totally divided into six parts.Chapter one, A General Description of the interpretation obligation. This part aims at determining the essence of the interpretation obligation, making clear its essential difference from the direction of proceeding power, and establishing foundation for the theoretical analysis. First, the author investigates the etymology of interpretation. In accordance with the disunity of lawsuit behavior of the party which is assisted by the court, the author investigates the meaning of clarification and interpretation. Combining the actual condition of our country, the author thinks that interpretation would be more appropriate. It is necessary that the party proceeds on the help of the judge due to the lawsuit ability difference between the party and the judge. Secondly, the interpretation nature should be definited as obligation based on the classical adversary doctrine transfter to cooperate adversary doctrine and liberal suit idea transfter to social suit idea. Then, through the comparative analysis of the direction of proceeding power, the author thinks that although there is certain connection between the interpretation obligation and the direction of proceeding power, these two are essentially different, that is, the interpretation obligation is not the component of the direction of proceeding power. (1) Different purposes. The major purpose of the direction of proceeding power originates in people's pursuit of lawsuit economy, aiming at raising lawsuit efficiency; while the major purpose of the interpretation obligation is virtually fairness, balancing the lawsuit ability of the involved party. (2) Different causes. For the sake of fluent, expeditious and timely carrying out of lawsuit trial, it is necessary for the court holding the direction of proceeding power; in order to make lawsuit information definite, adequate, proper as well as make clear the content of the debate of involved party, there are the necessity of carrying out interpretation in court. (3) Different content. The direction of proceeding power is essentially the management and control of the time of judicial procedures. It is concerned with the procedure; while the interpretation obligation focuses on the realization of substantive right and duty of involved party. It is concerned with the entity. (4) Different subjects. The subjects that the direction of proceeding power includes involved parties, agents, other lawsuits participants and also outsiders; the interpretation obligation merely aims at involved party. (5) Different legal effect. When the court exercises the direction of proceeding power, it holds absolute right of decision interpretation of court only plays the role of hint, guidance, or inspiration for involved party, who make the ultimate decision. The author introduces the classification of the interpretation obligation according to different standards.Chapter two, The Historical Development of the interpretation obligation in foreign country. This part aims at explaining the development of the interpretation obligation in the countries of continental law and its introduction to the countries of the common law, analyzing the social and economic and juristic basis for the interpretation obligation, and offering reference to the establishment of the interpretation obligation in our nation. Firstly, the author makes to elaborate development of the interpretation obligation in the countries of continental law. In German the interpretation obligation is established on the basis of the mutual responsibility of judge in civil procedure. Its manners extend from simple inquiry to explain, moreover, it requires the discussion between the judge and the party. The content of the interpretation obligation expands from the confirm fact of the case to applicability of law. Its function develops from assuring the justice of cases and reinforcing the guarantee the procedure to enriching trial procedures, reducing appeal, and quickening the course of litigation. In Japan interpretation has gone through a process, that is, positive doctrine of function and power--negative classical adversary doctrine--positive procedure safeguard model. Although that are still different opinions as to both whether interpretation is right or obligation and whether interpretation should include positive ones. It has become the basic guideline of Japanese civil procedure strengthening judicial interpretation and ensuring main right of involved party, which has gotten consistent approval. In French civil litigation the interpretation obligation is result of emphasizing the cooperation of judge and party. To solve the problems, such as party's leading litigation, judge's negative passive resulting in the delay of litigation, and ensuring party's right to exercise litigation in reasonable time limit, a series of reform measure are carried out to enlarge the power of judges, to promote to reach the purpose. In Taiwan region the attitude towards judicial clarify has changed from negative to positive, from matter-of-fact to expanded matter-of-law. Secondly, the author makes a brief account of the content of the interpretation obligation in judicial reform in common law country. But since their reforms are intended to solve the problem of delay of lawsuit, there are differences as to the purpose of establishing the interpretation obligation. Thirdly, on the basis of the analysis of the development of the interpretation obligation in different countries, the author comes to a conclusion that the economic foundation for the interpretation obligation is state monopoly capitalism, its social foundation is the emergence of welfare state, and its legal ideological foundation is material justice.Chapter three, The Theorial Foundation for the interpretation obligation. This part aims at explaining that the Constitution, which is the basic law of a nation, is the basis for civil procedural law. The requirement that everyone equality on law, fair accepting adjudicated right and fair hearing right equip with the basement on establishing the interpretation obligation. At the same time, the interpretation obligation is closely related to the basic theory of civil litigation, and it plays an important role in the formation of teleology of civil litigation, the remedy of defect of adversary doctrine and dispose doctrine, and make rationalize Res Jadicata. Firstly, access to justice has been clearly regulated in the Constitution of various countries that should be a component of human rights. Also a series of safeguards, such as the simplification of essentials of complaint, the diversification of proceeding and the generalization of gratuitous judicial assistance, have been offered to guarantee the realization of faculta jurisdiction, which offers constitutional basis for the interpretation obligation. Secondly, the protecting of hearing right that based on the constitution is the important part of the proceeding guard. It origins from human dignit and refers to all the procedure. The party should be honored in the procedure and have the right to state the fact and evidence and the law. Therefore the court should positively interpretate to realize fairly justice. Thirdly, in front of law, the focus of everybody's equality has changed from the modal opportunity to matter in actual life, which means everybody enjoys not only equal right of freedom but also vested right of equality according to actual conditions and abilities. Therefore, it can be a component of people's equality in front of law the reasonably different treatment, which provides constitutional basis for the balance of the lawsuit ability of involved party through the interpretation obligation. Forthly, the author brings forward the theory that dispute resolving according to law on the basis of a brief introduction and evaluation of the theory of litigation purpose. The theory that dispute resolving according to law refers to solving dispute according to law on the basis of finding out fact and trying to solve it at one time. The interpretation obligation is the important path to the purpose of the theory that dispute resolving according to law. Fifthly, with the elaborate of adversary doctrine, the author analyzes the relationship between the interpretation obligation and adversary doctrine. The main purpose of the interpretation obligation is to balance the ability of attack and defense of involved party, rather than the cancellation and the replacement of adversary doctrine. It makes up the defect of adversary doctrine, and makes adversary doctrine more optimized. Sixth, under the control of disposing doctrine, the right of disposing of the involved party limits the right of punishment of the court, the interpretation obligation can make up party's lack of the lawsuit ability, can mitigate the new and old object matter theory and amplify dispose doctrine. Finally, by analyzing the basement of Res Jadicata, the author thinks the interpretation obligation makes clear the objective scope of Res Jadicata and legitimates the evidence of it so that the authority of the court is strengthened.Chapter 4, Comment on the real Situation that the interpretation obligation in our nation. In this part, with a brief account of the background of the introduction of the interpretation obligation, the author mainly expatiates the stipulation on the interpretation obligation in the current law of our country, introduces various exploratory measures on the interpretation obligation in the judicial practice of our country, with this understanding, puts forward the necessity and feasibility of the establishment of the interpretation obligation in our country.. First of all, there is no circumstance for the interpretation obligation from inquisitional trail in ancient to the court directing trail. In the party-directed civil litigation mechanism, it is necessary to establish the interpretation obligation. With the going-on of judicial reform, in order to increase judicial dignity, there are attempts of interpretation in judicial practice, such as directing action, forwarding proof, imparting suit danger, arguing pre-adjudicate and explaining after adjudicate, which positively perfects the interpretation obligation in our country. But the lack of explicit stipulation in the current law of our country leads to the non-standard judicial practice. Secondly, in the light of the characteristics of judicature and the actual situation of our country, the author poses the necessity of the establishment of the interpretation obligation. The transformation of suit idea from substantive truth, due process to substantive incline equip with the basement on the interpretation obligation. It makes the establishment of the interpretation obligation essential, the incredibility of legal language, the uncertain meaning of recapitulative clauses, the incredibility of law and that of the application of law in judicial practice. The specialization legal language and the technicality of legal activity make the interpretation obligation necessary measures to protect litigious right. During the period of social transition, the establishment of the interpretation obligation becomes particularly urgent because of the increase of the incredibility of law as well as the gap between the lawsuit ability of involved party and the legal specialization. At last, combing the actual conditions of our country, the author puts forward the feasibility of the establishment of the interpretation obligation. To some degree, independent trial lays the groundwork of system. And it also offers legal foundation for the approval of judge's right of discretion in terms of the determination of facts and the application of laws.Chapter 5, The Assumption of Establishing and Perfecting the interpretation obligation in Our Country. In this part, the author brings about an idiographic about the establishment of the interpretation obligation in our country through the analysis of the value of the interpretation obligation, hoping it may be of directive use to the judicial practice in our country. Firstly, the interpretation obligation is positive to the realization of justice and efficiency of civil procedure. Via interpretation, the court can assist the involved party to find out the truth of the fact so as to reach substantive justice, which accords with the psychological demand that the people of our country pursue the justice of substantive justice. The court protects the factual equality of the involved party through interpretation, enables the party to participate in litigation, which actualizes open procedure and protects its justice. At the same time, the interpretation of court reduces the economic cost of country and involved party, increases social profits, and raises the benefits of procedure to the farthest degree. Secondly, the author gives the definition of the interpretation obligation; according to the idea that judiciary works for the public, and the requirement that the lawsuit right of the involved party be protected, conversion the court power and the nature of interpretation is determined as the subject of the duty of court; makes clear the subject of the interpretation obligation; delimits the bounds that the interpretation obligation does not violate the neutrality of judge; clarifies the content of the interpretation obligation includes interpretation of lawsuit request, facts, evidence and legal viewpoint; analyses the actual application of the interpretation obligation in each stage of lawsuit. In the end, the author poses safeguards of the interpretation obligation, establishes the system of explaining free proof and the idea of law, clearly stipulates the force effect of court not fulfilling the interpretation obligation, offers involved party specific measures of relief.