On The System Of The Hermeneutic Right

The system of the hermeneutic right is an important component of the system of the traditional continental genealogy of law and civil action. Terminologically, it seems that there is no "hermeneutic right" in Anglo-American genealogy of law; yet we have found that judges have more and more administrative power and the power of command in Britain and the United States in civil actions from the 20 Century. The aim to exercise these powers and functions is to facilitate litigation and to maintain the balance between the contesting parties. This aim and the aim of exercising the hermeneutic right in the countries of continental genealogy of law are just the same. This being the case, the present author holds that although there is no such a term of "the hermeneutic right" in Britain and the United States, there actually exists the system of hermeneutic right. If we try to trace back the origin, the fact that there exists the hermeneutic right system both in Anglo-American genealogy of law and continental genealogy of law has its root in the fact that any civil actions are faced with the problem of how to deal with the relation between the court and the contesting parties, and the hermeneutic right is just the demarcation line between the action spheres on these two sides, The problem of how to deal with the relation between the court and the contesting parties bears more importance and necessity to China, which is now promoting the reform of the ways and manner of civil adjudication and which is now in the period of undergoing changes, Upon the above-mentioned considerations, the thesis attempts the study of the hermeneutic right system.The thesis falls into three parts: the introduction, the body, and the conclusion.Introduction first gives a review of the studies of the hermeneutic right system, addresses the significance of the study of the hermeneutic right system and describes the methods and the line of thinking in the present study.The body includes five sections:Section 1 is a general investigation of the hermeneutic right system abroad. It investigates systematically the notion, the nature and the types of the hermeneutic right,the ways and criteria of its exercise, and the history of its legislation. This will provide a general picture of the hermeneutic right system.Section 2 is intended to set up the theoretical motivation of the hermeneutic right system. It holds that the hermeneutic right bears the functions of maintaining equal status in litigation of the contesting parties, of preventing from surprise adjudication, and of balancing entities and procedural interests, and so on.Section 3 examines the civil action pattern and the hermeneutic right. It first analyses the adversary system and the doctrine of function and power and points out that civil action pattern in western countries are of the adversary system. Then it points out that there is no contradiction between the adversary system and the hermeneutic right with the hermeneutic right being the integral part of the adversary system. Finally it holds that the hermeneutic right is a duty of the judge.Section 4 examines the necessity of the setting up of the hermeneutic right system in China. It focuses on the analysis of the realities necessity of the setting up of the hermeneutic right. The development of the right path of the reform of the civil adjudication system, the reasonable solution of modern litigation as well as the present state of the cultural cultivation, law cultivation of the citizens in our country decide that it is a realistic urgency for China to set up the hermeneutic right.Section 5 deals with the construction of China's hermeneutic right system, establishing the macro construction of the sphere of hermeneutic right, the tinning of its exercise, the principles of its exercise and its lawful effects.The conclusion points out that a basic preliminary condition for the healthy operation of the hermeneutic right is the judge's higher qualities. Generally speaking, the judges in China are as a whol...