On The Construction And Application Of The System Of Aufkaungsrecht

Aufkaungsrecht of judges is one of the most important systems existed in civil procedure of continent law.It is the modification and the supplement to the adversary system. The article is intended to set up the theoretical motivation of Aufkaungsrecht system. It holds that Aufkaungsrecht 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. In the paper, author might reveal various theories of Aufkaungsrecht, including terms and categories, for the purpose of Aufkaungsrecht.It is a significant institution in civil procedure law. Because of some historical reasons, Chinese civil procedure system had more color of doctrine of function and power in the past, and our present Civil Procedure Law does not enact aufkaungsrecht of judges clearly. With the establishment of market economy system, the society is calling for the respect to party's right of disposition and adversary. enacted by the Supreme People's Court explains the system of Aufkaungsrecht. So under the background of the amalgamation between the litigation procedure of the doctrine of function power and the party's right of disposition and adversary, it is a new problem to exert the aufkaungsrecht correctly. Examines the necessity of the setting up of Aufkaungsrecht 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 Aufkaungsrecht system.This thesis introduces the theory of aufkaungsrecht thoroughly through scientific investigation and logical analysis. It also explores how to operate aufkaungsrecht in practice of judicatory and puts forward some views on perfecting the system of aufkaungsrecht. In addition, the author hopes that this thesis can be helpful to civil adjudgement procedure in reformation in China. It also deals with the construction of China's Aufkaungsrecht system, establishing the macro construction of the sphere of Aufkaungsrecht, the confine of its exercise, the principles of its exercise and its lawful effects.The author points out carefully that the system of aufkaungsrecht is discussed under the history background of reformation about civil judgment in China. To establish the aufkaungsrecht of judges is not go backwards the doctrine of function and power, but seek for a best combining point between the party's right of disposition and doctrine of function and power on the basis of improving judges'qualities.