On Judge's Interpretation Right In Civil Procedure

The system of judge's interpretation right originated from German Civil Procedure Law Draft in 1877, which stipulates the system of judge's interpretation right for the first time, and creates a precedent for stipulating the system of judge's interpretation right in civil procedure law. Presently, most countries have established the system of judge's interpretation right.Interpretation right, also called clarification right, refers to the power that in the process of civil procedure, in order to remedy the deficiency or defect of the party's debating ability, in the event that the party's claim is not clear or contradictory, or incorrect, or insufficient, a court may propose factual and legal interrogation to the party in accordance with its functions and powers, actuate the party to offer evidence, clarify some facts claimed by the party, guide and assist the party in debating sufficiently about case facts and relevant evidence, so as to ascertain case facts.Interpretation right is comported by the judge in accordance with his or her functions and powers. As to the legal nature of interpretation right, theory circle and practice circle has three theories: the fist one is the theory of the judge's rights; the second is the theory of the judge's obligations; the third one is the theory of the judge's rights and obligations. Indeed, in different countries or different stages of a country, theories have changed a lot. The author thinks that as to the issue of the legal nature of interpretation right, modern civil procedure inclines to such a concurrence both theoretically and practically that interpretation right is not only the judge's rights, but also the judge's obligations. Whereas it cannot resolve some issues on procedure theory that interpretation right is only the judge's right or only the judge's obligation, therefore, it shall be deemed that interpretation right is both the judge's right and obligation.Through comparative observation and study of legislation cases in other countries and regions, this thesis comprehensively discusses practical handicaps in China's system of judge's interpretation right: 1, shortcomings of the regulation of interpretation right itself; 2, shortcomings in practical use; 3, conflict between judge's interpretation right and the system of time limitation for adducing evidence; 4, much lack of theoretical research on interpretation; 5, incompatibility between the system of court administration and that of interpretation right.The focus is to propose personal opinions of specific conception of the system of judge's interpretation right: 1, legislation mode of the system of judge's interpretation right; 2, executing principles of judge's interpretation right; 3, executing mode of interpretation right; 4, remedy methods of improper interpretation right; 5, shift of the judge's concepts and improvement of the judge's competence; 6, remedy of mistakes caused by judge's interpretation right——establishing the remedy system of interpretaion right.Finally, according to the author's trial practice of working in the court for many years, specific conceptions of judge's interpretation right in trial is proposed:1, The judge shall understand it is not only the judge's legal function and power, but also his or her obligation to exercise interpretation right according to law, and is a vital way by which the judge protect the party's action right. The judge's exercise of interpretation right shall be aiming at searching the party's true meaning, seek the party's true purpose, comprehensively claim, clarify the party's original meaning of stating, guarantee all parties'freedom, and sufficiently exercise action right. Exercising action right, the judge shall insist on statutory principle, neutral principle and open principle, guarantee the balance between the party's action status and action right. Exercising action right, the judge shall proceed according to law, neither subrogate nor abuse functions and powers, specially shall not substitute for the party to exercise and dispose rights. Exercising action right, the judge shall make clear explanations to all parties, and record interpreted objects and interpreted contents. Exercising action right, the judge shall make clear explanations to all parties, and clarify legal warranties and reasons. Substantial argument, litigation claim, evidence supplementation, or assumption of the liability of adducing evidence shall be determined after collegiate panel deliberates.2, Both parties have the right of dissenting from the exercise of interpretation right on the spot. If both parties dissent, the judge shall reply in time. If a dissent is established, it shall be corrected in time, and the party who dissents shall be notified. Functions of the judge's exercise of interpretation right lies in notifying, warning, enlightening, questioning and helping the party sufficiently exercise its own action right, but all parties are not subject to legal compulsory force and binding force, the judge can only interpret the same matter of the same party once, and the party shall be responsible for its rights interpreted by the judge. In order to guide the party to exercise action right correctly, after the Case-Acceptance Division transfers a case, the judge shall exercise interpretation right such as viewing the case in time, receiving the party, inquiring the case of the party and examining the indictment, and guide the party to adducing evidence. The judge shall inquire of the party whether the party receives the Notice of the Party's Action Rights and Action Obligations in Civil Case, the Notice Letter of Adducing Evidence for Civil Procedure, the Notice of Adducing Evidence for Civil Procedure, and the Indication Letter of Civil Procedure's Risk in order to clarify the party's action rights and obligations, and notify the party's action risk.3, Examining an action, the judge shall exercise interpretation right, help the party propose definite, sufficient and proper litigation claim. The judge shall exercise interpretation right before the opening of a court session, notify the party of the principles of allocating the obligation of adducing evidence, the right of applying for the court's investigation and collection of evidence, and specific situations and time limitation of adducing evidence, help the party sufficiently realize the relationship between adducing evidence and claim results, and action risk and liability. The judge shall exercise interpretation right while exchanging evidence, and guide the party to safeguard its own legal rights by actively adducing evidence. The judge shall exercise interpretation right during the trial, in order to secure controversial focus, confirm uncontroversial facts, clarify controversial facts justified through evidence, and help the party acquire a reasonable expectation upon the claim result.4, On the basis of guiding the party to infer legal facts through the trial, adducing evidence, questioning evidence, the judge shall interpret legally, and help the party evaluate itself, judge itself, expect reasonable claim results, urge the party to mediate actively. When the court sentencing, the judge shall evaluate openly and discretionally, exercise interpretation right upon sentencing results to the party, state the reasons of wining a lawsuit and failing a lawsuit, and help the party comprehensively understand the sentencing result. After sentencing, the judge shall receive the party and exercise interpretation right to the party upon such matters as legal warranties for facts affirmed in the case, reasons applicable to law and relevant action process. When it refuses to accept, the party shall be notified to appeal in accordance with legal procedures. The judge who does not perform the duty of exercising interpretation right or abuse interpretation right due to deliberate purpose or serious fault, and as a result affects the party's exercise of action rights, damage the party's interests or brings about other serious results, shall be investigated and assume relevant liabilities.