Study On The Reform Of Mode Of Civil Trail In Our Country And Judge's Right Of Clarification

Judge's right of clarification is an important doctrine in the civil procedure law of the civil law system. This doctrine originated in the period of transition from the adversary model to the autocratic model of the civil procedure system of the countries of the civil law system. This doctrine plays an important role in civil procedure systems of some countries including German, France, Japan, and the district of Taiwan. In the civil procedures of these countries and district, there is much discussion on the doctrine. The doctrine of Judge's Right of Clarification has functioned as a remedy for the target implementation of the civil procedure. With accelerated integration of the world economy, the dispute settlement mechanism in both the Common-Law System and the Roman System lays more importance on the construction of the procedure, the roles of the judges, which requires the judges to perform their functions more actively, so that lawsuits can be expedited through the guide and command of judge authority.From the establishment of PRC to the eve of reform of mode of trial in the late 80th of the last century, surper-autocratic model are always popular in our country, under which the power of the judges has no limits and the role of the judges is very active. They always played the role of the attorneys of the parties. It seemed that there was no any necessity to inact any provisions of code to difinite the judge's right of clarification.The Reform of the Mode of Civil Trial in our country, which commenced from the late 80th in the last century, has undergone a frustrated period.After the commence of the reform of trial mode, the courts in our country begin to strengthen the burden of proof of the parties, weaken the authority of judges in the civil action, and import the adversary mode of litigation. At the same time, with increasing case number, there are always some parties who could not express their idea clearly and completely, or could not know how to prove their own claim, or could not state the fact that should be stated, or could not add or amend the claim that should be added or amened for the reasons such as education background, legal consciousness, activity of litigation. On this occasion, there is cry for the instruction or illustration from the judges to insure the equality of both parties. Therefore, the discussion on the judge's right of clarification commenced.At last everyone comes to know that the judges are not only the neutral referee of the civil disputes, but also the judge of lawsuit contest and the controller of the procedure.Many specialists in our country share the idea that the model of the civil procedure in United State is the adversary model, while that of Roman system is autocratic model, which makes them substantially different. But the doctrine of Judge's Right of Clarification, based on information by far, has become the same choice coincidentally during the reform of the civil procedure system in each country, no matter what it is, Roman law or the Common law, adversary model or autocratic model. This phenomenon does not occur incidentally. It implicates profound lawsuit theory and reflects a main trend of reform of civil procedure in the world. By far the reform of mode of civil trial in our country has come to a key era, the traditional super-autocratic model are criticized.universally, in which the new mode of trial is shaping, the traditional super-autocratic model are criticized.universally,and the existing Law of Civil Procedure is ready for amending. We must study carefully the doctrine of judge's right of clarification, and explore the common principles on its establishment and practice. By combining these principles with the reform practice of mode of civil trial in our country, we can construct our own theory system and establish a better doctrine system. Therefore, the mature reform experience can be raised to laws, through amending which, the validity of reform of mode of civil trial can be guaranteed and deepened.This article, based on the ideas above, discusses the doctrine of judge's right of clarification. It is expected that judges engaged in front practice can better understand this doctrine by reading this article, which arouses better and more mature ideas.This article consists of five parts, which is about forty thousand characters.Part I introduces the basic theory of the doctrine of judge's right of clarification in the main countries of the two legal systems in various aspects. This part discusses the concept, nature, classification, scope, value of this doctrine and so on.Part II introduces the legislative precedent of doctrine of judge's right of clarification in the countries of the two legal systems. A brief summary of action models of the two main legal systems in the world are first introduced, and then the relationship between the adversary mode of action and judge's right of clarification, is emphasized, as well as does the relationship among judge's right of clarification, judge's power of controlling the litigation, and discretional evaluation of evidence.Part III presents the legislative precedent of doctrine of judge's right of clarification in the main countries of the two legal systems, with the evolution of this doctrine in these countries included.Part IV provides the history and status in quo of the reform of mode of trial, and discusses the sensitive topic that how to choose the trial model. From this aspect, the necessity of constructing the doctrine of judge's right of clarification in our country is discussed, and the problems and its cause on judge's right of clarification in our country are analyzed.Part V analyzes the judge's right of clarification in our country, and gives advice on its improvement.The final part concludes that the doctrine of judge's right of clarification is exercisable in much degree. Whether this system can achieve its goal depends on the whole ability of the judges.