Research On Power Of Judge's Clarification

Power of judge's clarification results from civil procedure of continental law system, and it is the result of reflecting on adversary doctrine by continental countries. It can guarantee substantive justice, improve efficiency of action, discovery the truth of case, avoid surprise adjudicate and enhance persuasion of adjudicate, so it is called the"correction"or"mend"of adversary doctrine, and even"the grand charter of protection of party's rights". Power of judge's clarification is also a system which has a strong theory basis, and it has relationship with theories of mode of action, power of action command, balance of offense and defense between parties and balance of values of action, and so on. In the course of reform of civil trial form in our country, the power of judge's clarification is paid more attention by civil procedural scholars, and is also attempted in practice. So research on power of judge's clarification has both theoretic value and practical meaning.This paper chooses the power of judge'clarification as its topic, it introduces the theory of power of judge's clarification by methods of legal philosophy, comparative jurisprudence, historical jurisprudence, and so on. This paper also gives advices on China's design of power of judge's clarification with judicial reform.Chapter one is about summary of power of clarification. It begins with the meaning of"clarification", and then introduces the relationships and differences between power of judge's clarification and correlative concepts, such as clarification disposal, action information, judge's inquiry by authority, obligation of legal view discovery. It also introduces the history and development of power of judge's clarification in the continental law system countries, and some basic classification of it. Chapter two is about the theory base of power of judge's clarification. It expatiates why the power of judge's clarification should be existed by analyzing theories of mode of civil action, balance of offense and defense between parties and balance of values of justice and efficiency.Chapter three is about the comparative research. Its comparative scope includes power of judge's clarification's nature, people, exertion ways and its force ad effect, and after every introduction of legislative mode of practice or theory, there is a summary and brief analysis.Chapter four is about the design of our country's power of judge's clarification. First, it summarizes our country'law and practice of power of judge's clarification, namely we have had rudiment of power of judge's clarification. Second, it analyzes the feasibility of design from system base and practical need. Third, it gives advices on our country's design of power of judge's clarification, including legislative mode, exertion principles, exertion phases, exertion scope, remedy and safeguards.