From Concept To System: A Primary Probe Into The Judicial Elucidation

Judge's interpretation right is one of the most important systems existed in civil procedure of continent law. In our country, constructing of interpretation right' has its special significance. However, relevant disputes taken place in theory realm and practice is still insufficient, it should be more difficult to find out authoritative illustration. Therefore, author here tries to interpret judge's interpretation right combining with experience from civil trial. The right to clarify is an important legal system of Civil Procedure Law in Continental Law Legal system, which has quite important position in the theory of civil action as well. Its rational foundation existing is restriction and revision on the adversary doctrine on the certain degree, in order to remedy the drawbacks of unfairness, lawsuit delaying, and lawsuit cost high problem that the pure adversary doctrine brings. The right to clarify can play a very big role to ensure the lawsuit's carrying on smoothly, improve lawsuit efficiency, and ensure the parties' lawsuit rights. This article is made up of five main parts. The first part introduces some basic problems about the right to clarify. Author might reveal various theories of interpretation right, including terms and categories. At the second part author introduces the current legislation and legal practice in China, and analyzes some problems in judicial practices jointing with current situation, and demonstrates the necessity of interpretation right's construction in our country. The third part introduces some procedure value of interpretation right. The fourth part introduces it's building and developing briefly in abroad and in Taiwan region, and puts emphasizes on the theoretical questions, for the purpose of illustrating that interpretation right is not only the right of judge, but also the duty of judge in civil procedure. Author believes that comprehending of interpretation right should begin with the analysis the two different models of civil procedure. Interpretation right derives from disparate legal traditions of disparate legal systems, has been fast connected with debate principle, and been one of the limitation and supply to the principle on the other hand. The fifth part analyzes forward tentative plans to perfect the right to clarify of our country. On the basis of academic analysis, combining with legal practice, author ought to illuminate the common principle of interpretation right, the stage, the methods, the scope of the application of it, and supposes the remedy of wrong interpretation right, the relationship between the right and the promotion of judges'qualities.