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Study On The System Of Judge's Clarification Right In Civil Procedure Of China

Posted on:2010-02-12Degree:MasterType:Thesis
Country:ChinaCandidate:L L LvFull Text:PDF
GTID:2166360275456716Subject:Procedural Law
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The system of judge's clarification right is one of the most important theories and results of practice in the civil procedure theory of the civil law system. The justification of its existence lies in that this law can rectify the litigant's proceeding, strengthen and extend the judge's function, and provide proper explanation so as to smoothen the lawsuit, get the real intention of the litigant and ensure justice, when the client is unable to state the fact clearly or when there is no sufficient proof. The law of system of judge's clarification right undoubtedly gets more attention from both theoretical and practical circles in the reform of civil adjudication procedure in China, due to its importance in the civil procedure theory of the civil law system. However, the background in which the system of judge's clarification right was introduced into China is different from that in which the law came into being in the civil law system; and the present reform is towards the development of litigant's action to weaken and limit the judge's authority and strengthen procedural protection for the client's right of action. Thus, the writer, when studying the system of judge's clarification right in China, takes the reform of civil procedure into account and tries to discuss the issue of how to apply such an implanted system to the civil procedure in China on the basis of existent stipulations in related laws.The present thesis consists of five parts:In part one, the basic theories of the system of judge's clarification right are introduced and the definition, nature, and types of clarification right are discussed. While definitions by others usually concerns only the judge, the writer pays attention to both the judge and the client when analyzing the clarification right, regarding the system of judge's clarification right as a litigious system in which the judge and the client both take part and function. The nature of the clarification right is defined differently by different people in the science of civil procedure. Yet the writer regards it as having right and obligation at the same time through analysis of the application features of the judge's clarification right combined with the consideration of the background of reform in civil lawsuit procedure in our country. The clarification rights, when analyzed according to different standards, can be classified into: factual and legal clarification; active and passive clarification; clarification in the field of adversary system and clarification in the field of punishing right.In part two, the evolution of the system of judge's clarification right is presented and the specific situations in Germany, Japan, and Taiwan of the civil law system are introduced. The system of judge's clarification right firstly appeared in the civil procedure law in Germany, and then Japan followed suit and introduced such a system. With the development of civil procedure theories, the system of judge's clarification right gradually became an important part in the civil law system. As the civil law system and common law system communicate and learn from each other, countries of the common law system began to grant judges authorities of managing contentious matter in civil procedure, in which there existed the element of clarification right. Yet in this thesis this part is not covered due to its immaturity.In part three, the theoretical background of the introduction of the system of judge's clarification right into our country is analyzed, which includes: the objective theory of civil procedure, background of model change in civil procedure, and debate principle. Our country's civil procedural object takes the theory of pluralism, that is, to protect the client's substantive right and procedural right, to solve civil dispute, and to maintain social economical order at the same time. The system of judge's clarification right is congenial to the objective theory of civil procedure in our country and helpful to obtain the objects of civil procedure. Our country is now in the process of transforming from the authority system model to litigants system model. So it will help to limit the authority of the judge who can properly exercise different right to provide a clear definition of the range, methods, limit, and ways of relief of judge's clarification right.Debate principles in our country have already undergone a substantive change and the litigants has been introduced as a reasonable core in the process of civil trial methods reform.It will surely help the clients make more complete argument, promote the realization of client's lawsuit right and guarantee the client's status of procedural subject to introduce the system of judge's clarification right in such a background.In part four, the system of judge's clarification right in our country's civil procedure theory is discussed. In the legislation, there's no stipulations of judge's clarification right in the current Civil Procedure Law, which are mainly in the judicial interpretation issued by the Supreme People's Court and which include: Several Stipulations on the Evidence in Civil Proceedings, Several Stipulations on Applying Summary Procedure in Hearing Civil Case, Guidance of Specific Methods in Implementing 23 Judicial Affairs for Citizens, Discipline of Judge's Behavior (tentative). In judicial practice, provincial and municipal courts have issued stipulations on the guidance of the judge's clarification right under the guidance of the Supreme People Court's judicial interpretation. And objectively the development of the system of judge's clarification right is promoted.In part five, the practical application of the system of judge's clarification right in our country's civil procedure is talked, and the exercising principles, applicable range, exercising methods and remedial mechanism of clarification right are covered. In the discussion, the practical application of the system of judge's clarification right in our country is analyzed through a combination of the theoretical foundation put forward in part one, foreign systems in part two, theoretical background in part three and current situation analysis in part four in order to make the study more meaningful both theoretically and practically.Our country's system of judge's clarification right is an implanted system which was introduced in the reform of civil trial methods. Therefore, there still existed some problems. But it is considered that with the deepening of the reform and the cooperation of jurisprudential researchers, the theory, legislation and practice of the system of judge's clarification right will finally become mature and completed.
Keywords/Search Tags:judge's clarification right, the authority system, the doctrine of litigant, debate principle
PDF Full Text Request
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