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On The System Of Clarification

Posted on:2008-02-03Degree:MasterType:Thesis
Country:ChinaCandidate:X Y ZhouFull Text:PDF
GTID:2166360215972427Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Judge's clarification belongs to the substantive orders in litigation, and it's the judge's assistance with the parties on the procedural substance. The system of clarification in the continental legal family was set up for amending the adversary system. Comparatively speaking, with the adversary system being set up, the system is being constructed in our country. The differences between them decide that our country's system should have its own characteristic. Firstly, its nature is to give assistance with the parties to realize their legitimate rights. Secondly, the system need break away from the adversary system relatively. That is to say, it could be brought into use on not only the range that the parties play the leading roles but also the one that the judge takes the main effect.The thesis contains six parts.Introduction gives a review of the situations that the system of the continental legal family had faced and our country's system is facing. By the comparison between them, we raise a question that how to construct the system of Chinese characteristics through combining the tradition, reference with innovation organically.Chapter 1 is the analysis of the system on the theory of law. After giving the detail information about the connotation of the system from its meaning, types, purposes and nature, we analyze its theoretical bases which are the theory of trust truth and cooperative orders in litigation.Chapter 2 is the system on the field of the comparative laws. The system stemmed from the continental legal family, so it's necessary to know its development and the regulations of the system for our reference. Although there're no regulations of the system in the Anglo-American legal family, orders in litigation of judge is more and more practicing its function in the countries between England and America, especially at the stage of pre-trial.Chapter 3 is the realistic foundation to construct the system in our country. One of the goals of our civil trial reform is to set up the adversary system. Only at this litigation pattern could the system take effect, so it's necessary for our country to construct the system. At the same time, the system could practice the idea of Justice for People, which embodies the essential requirement of socialist rule by law. Otherwise, the system constructed could deal with the questions that the interpretations of the Supreme People's Court can't settle and instruct the practice.Chapter 4 is the idea of legislation about the system in our country. The system is being constructed with the adversary system being set up in our country, which is different from the system of the continental legal family that was set up for amending the adversary system. That decides our country's system should break away from the adversary system relatively. In our country judge's clarification should be accord with its prerequisite and its contents should abide by the limitation. With the different procedural stage, judge's clarification would have the different features. And with the different actions of the parties, the legal effects have the corresponding distinctions.The last one is the conclusion. On one hand, our country's system should use the experiences of other countries for reference. However, what's more important is to develop it on the basis of our country's resources. On the other hand, it's hard to master the limitation of the system, which subjects to the performance of the judges. To obtain these, judges and learners should make efforts together for a long time.
Keywords/Search Tags:Clarification system, Adversary system, Orders in litigation, Assistance
PDF Full Text Request
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