Font Size: a A A

On Interpretation Right Of A Judge

Posted on:2011-02-09Degree:MasterType:Thesis
Country:ChinaCandidate:J S TianFull Text:PDF
GTID:2166360305457745Subject:Law
Abstract/Summary:PDF Full Text Request
In recent years, the discussion on the issues concerning with interpretation right of a judge lingers in our ears, and the research on such issues is intensifying constantly, for which the reason is mainly related with the constant reform and improvement of the civil action system, especially the selection and blend of the lawsuit modes in civil action system has been an observable promotion for the development of interpretation right system for a judge. Interpretation right is not only a theoretical issue but also an issue with a strong practicality; however, during the judicial practice, due to the deficiency of regulations for interpretation right of a judge in legislation, there are quite a few disputes in the judicial practice and many issues appearing during the implementation of interpretation by a judge, both of which prove that it is really necessary to research the regulation and measures for interpretation right of a judge.The interpretation right of a judge is related and analyzed through three parts in the thesis.Part-1 is about the definition of interpretation right system for a judge and its transformation with civil action mode. First of all, interpretation right of a judge is defined through three aspects which are the concept, nature and characteristics of interpretation right of a judge. Through the definition of the concept of interpretation right of a judge, it is deemed that interpretation right of a judge is a litigation act in which when the claim, ideas for presentation or evidence offered by any party are unclear, insufficient and inappropriate, a judge shall remind and inspire such party or require such party to interpret or to make an additional correction for the said items according to law. In consideration of the definition of the nature of interpretation right of a judge, by means of analyzing and concluding all kinds of theories on it in different countries nowadays, it is deemed that the nature of interpretation right of a judge shall be the function and power of a judge which means that it shall not only be the responsibility of a judge but also the right of a judge. With respect to the characteristics of interpretation right of a judge, it is pointed out that interpretation right of a judge has the following characteristics which are with its main body specially appointed, with its object directing to the litigation right and substantive right of any party, its execution with certain conditions and its legal consequence with extensibility, etc. Second of all, the transformation between interpretation right of a judge and civil action mode is related and analyzed, the relationship between interpretation right of a judge and the two existing civil action modes of litigant-ism and authority-ism in Continental Legal System and Anglo-American Legal System and the relationship between interpretation right of a judge and the transformation process between the two said civil action modes are presented.Part-2 is about the legitimacy and necessity of interpretation right system for a judge. With the gradual blending of the two kinds of lawsuit modes, the moment of transition of civil action mode supplies a direct system soil for the interpretation right system, and at the moment there is not only the possibility for the existence of interpretation right but also the necessity for the existence of interpretation right. First of all, the legitimacy of interpretation right system for a judge is related and analyzed: Firstly, such legitimacy is required to realize the substantive justice. The judge implements interpretation right in time, and leads any party to put forward correct litigation opinions and make clear presentation and offer adequate evidence to prove their opinions, all of which are advantageous for the court to clarify the facts of cases and ensure the substantive justice. Secondly, such legitimacy is necessary to realize the procedure justice. Through the performance of interpretation right, the judge inspires any party with a deficient legal knowledge in the inferior status to express their opinions and presentations clearly, explicitly and completely, which will ensure the two parties to be at an equal status in litigation and further will ensure the judicial procedure justice. Second of all, the necessity for the existing of interpretation right system for a judge is related and analyzed through four aspects: Firstly, it is the necessary for the realization of the balance of capacity to action of the two parties. In the practice of litigation, the two parties show different capacity to action, with regard to the party which shows a relatively weak capacity to action, the judge may interpret the relevant legal rules to such party through implementing interpretation right and make them learn about the possible legal consequences and against which take certain litigation voluntarily. Secondly, it is necessary for the improvement of judicial efficiency. The implementation of interpretation right of a judge can realize the judicial justice, weaken the complaints and suspension of any party and reduce the happening of other lawsuit procedures except for the original one, which will increase the judicial efficiency. Thirdly, it is necessary for diversifying the purpose of civil action. The purpose of civil action plays an important role in the construction of the basic system of civil action, and to some extent, it can be deemed that the existence of interpretation right system for a judge in civil actions all over the world is the concrete embodiment of the purpose of civil action. Fourthly, it is necessary for the making-up of the existing defect of judicial practice. Under the situation of no system of compulsory agency of lawyers and a rather weak legal aid, the judge can assist any party to get rid of the weak litigation status and ensure such party to implement the right due to them.Part-3 is about the current situation, defects and improvement of interpretation right system for a judge in China. First of all, through combination with the conclusion of the relevant regulations on interpretation right system for a judge in the existing legal norms of China and the concrete cases, the current situation of interpretation right system for a judge in the existing legal system and the existing judicial practice in China is analyzed here. Next, four aspects of defects existing in the interpretation right system for a judge are summarized as follows through analysis in China: Firstly, order-step of the norms of interpretation right system for a judge in China is too low; Secondly, the scope of interpretation right system for a judge is too narrow; Thirdly, the main body theory of interpretation right of judges is backward and the qualities of judges are different in China; Fourthly, the interpretation right system in China lacks a specific rule for and a specific provision of the legal consequences which are brought by the judge's implementation of interpretation right. At last, through combination with the existing defects of interpretation right system for a judge in China, the standardization and improvement of interpretation right system for a judge are stated, which are as follows: Firstly, the relevant legal regulations concerning interpretation right system for a judge shall be improved constantly and the order-step of standardization of interpretation right system for a judge shall be increased, which means to improve the basic theory system of interpretation right system in detail through making sure of the concept, nature, main body, principle and applicable items, etc. in China; Secondly, the process of interpretation right of a judge applying to all stages of a litigation is promoted constantly which is for the purpose of broadening the applicable scope of interpretation right of a judge in China. According to the division of stages of action in the thesis, in order to improve interpretation right system for a judge, the concrete applicable scope and items of interpretation right of a judge at all stages of action such as registration, preparation before trial, trial, adjudging, retrial and execution. Thirdly, it is necessary to constantly increase the judicial theory and professional competence of judges to create the conditions for them to correctly implement interpretation right. As a right and also an obligation of a judge, interpretation right highly requires a judge to make sure that the interpretation right is correctly implemented by him. And such judges shall have the following qualities: to establish the faith of the supremacy of law, to be legal professionals, to observe professional ethics and to strictly comply with occupational disciplines. Fourthly, the concrete ways of implementing interpretation right of a judge and the accountability for the inappropriate applying of interpretation right of a judge shall be made clear which shall break through the bottleneck of the lack of specific rules and legal consequences of interpretation right system for a judge in China now. With respect to the circumstances of the inappropriate implementation of interpretation right during the implementation of interpretation right by a judge, including that it shall be interpreted and hasnot been interpreted, it shall not be interpreted and has been inpreted, the interpretation without a needful limitation and the interpretation not according to procedures, etc., and the different legal relief ways for each type of the said circumstances are put forward.
Keywords/Search Tags:Judge, Interpretation Right, Civil Action, Lawsuit Mode
PDF Full Text Request
Related items