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Comment On The Perfect Of The System Of Interpretation Right In China

Posted on:2010-05-29Degree:MasterType:Thesis
Country:ChinaCandidate:J LuoFull Text:PDF
GTID:2166360275960417Subject:Litigation
Abstract/Summary:PDF Full Text Request
The interpretation right is an important institution in the civil procedure law of the continental law system. And its main function is to make up the doctrine of adversary in the pursuit of formal fairness but leading to the essential unfairness; to better balance the interests of both parties and to achieve a thorough settlement in dispute. Objectively speaking, by the exercise of the interpretation right, it can also contribute to the communication between the judge and the parties, and guide the parties to carry out appropriate action and improve the efficiency of the litigation. In recent years, with the deepening of judicial reform in our country, our civil procedure law mode has been changed fundamentally. In the new mode of action , the judge no longer pose absolute power replaced by more self-emphasized responsibilities of the parties and limited assistance of the judge . And how to find out a balance between the two has become imperative. It is in this case, the study of the interpretation right system has been a significant meaning.This paper is divided into five sections.Chapter One: the brief instruction of interpretation right. This part simply describes the meaning, nature, classification and function of interpretation right. The author believes that the interpretation right is a right to the judge as well as an obligation, which contains two types of empowerment, which is the right to ask questions and tips. In accordance with different standards, it can be divided into the following three categories: the interpretation of the doctrine of adversary and the right of disposition, the negative and positive interpretation, and the narrow and broad interpretation . On the function, the interpretation right does have four functions: to making up the deficiency of the doctrine of adversary, to preventing the surprise of judgment, to promoting the communication between the judge and the parties, and to ensure substantive justice.Chapter Two: the theoretic study of the interpretation right. This part mainly discusses the relationship between the interpretation right and due process theory, the adversary and the cooperative system. The author believes that the institution of the interpretation right is to make up the deficiency which lies in the due process theory and the doctrine of adversary .And the institution itself is not a negation to the due process and the adversary, but perfection. When the cooperative system trend rose across the world, the interpretation right system has been given a new mission, which is the promotion of communication between the judge and the parties in order to achieve active cooperation in litigation.Chapter Three: the prescription about the interpretation right in civil law system countries. This part simply summarizes the legislative stipulation of the interpretation right system in the civil law system countries. And in order to build our country's own interpretation right system, it does provide a blueprint of reference.Chapter Four: the analysis of the status about the interpretation right system in China. This part mainly analyzes the status of legislation and practice of the interpretation right system in our country, and finds out the existing problems of it. The author believes that China's legislation is too simplified about the interpretation right system, and there is no systematize, which makes it difficult to full play its functions. On the practice, as our country's judicial reform implemented in recent years has broken the litigation mode of inquisitorial system of the past. But the new litigation mode hasn't ye fully established. Therefore, in practice, there are some hypercorrect phenomena such as the judge over-weaken their powers, and there is no necessary standard about the judge's exercise of interpretation right, which leads to casualness.Chapter Five: the construction of China's interpretation right system. This part is key to the paper. In this part, the author put forward his own ideas about the construction of China's interpretation right, including : the nature , the principal of exercise , the stage of exercise , the content, the scope of exercise , the limits of exercise , and the relief in improper exercise of China's interpretation right.
Keywords/Search Tags:Interpretation Right, Doctrine of Adversary, Cooperative System, Perfect
PDF Full Text Request
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