| The primary value to civil litigation is justice and efficiency. Within his jurisdiction the judge acts as the settler of the dispute in the court and one of the necessary principal parts of the civil litigation. He takes on the mission of accomplishing the value of the civil litigation, so that he possesses the right of the proceedings direction to ensure the litigation carrying out orderly. The act of the civil judge on promoting litigation as an important part of the right of the judges substantive proceedings direction, which is performed by way of interpretation, suggestion and discussion, is of great value . It can make the judge and the parties find out the focus of the dispute and the truth of the legal case, offer the parties the opportunities of anticipating the results of the litigation, so that it helps the judge mediate between the two parties or the two parties reconcile. With the litigation performed smoothly and efficiently, the material rights of the parties come true. So regardless of the countries belonging to the continental law with the character of inquisitorial system or the countries belonging to the adversary system, both agree by mere coincidence on giving weight to justice and efficiency of the litigation and keeping balance of disposing rights between the judge and the parties and pay close attention to the act of the judge on promoting litigation. Due to the shackles of the Chinese traditional inquisitorial system, the thoughts about the right of the judge during the litigation , especially the understanding of the act of the judge on promoting litigation are always lack of limitation. With the reform of trial mode bringing the trend to adversary system, the leading positions of the parties are overemphasized and the judge' s function is neglected, so that the litigation delays. All these are denounced. So it is urgent to deep the research of the act of the judge on promoting litigation. Based on an comprehensive analysis on the value, the theory, the nature and the importance of the act of the judge on promoting litigation, andthe study of the relevant system in the originating country Germany, this article bring up the concept of "the act of the judge on promoting litigation" , which generalizes and characterize the interpretation right of the civil judge essentially. It is showed in this article, to make the system of the act of the judge on promoting litigation perfect, old concept should be changed. It will not lead to back to the inquisitorial system when the act of the judge on promoting litigation as the right of the substantive direction of the proceedings is strengthened and perfected. But it must base on the respecting of the principle of disposition and the principle of party presentation. Concerning the construction of concrete system, each regulation, including those about relief system should be perfected and all these should make into laws at last.This article is composed of four parts.In the first part the present situation of the act of the judge on promoting litigation in china is introduced. On account of the character of the judge' s authority with the cooperating principle of the civil litigation, which cooperates with the parties to promote litigation, and the indefinite concept "interpretation" , the author brings up the concept of the act of the judge on promoting litigation. In the view of the author, the concept of the act of the judge on promot ing lit igat ion in china has only the basic meaning of "interpretation" , that is to say, this system in china has merely an initial form and far from perfection. This can be seen in its simple legal rules, stagnancy of the theory research and thereby the confused practice. The main reason is that the lack of limitation of the judge' s authority makes it seem unnecessary to research this system. Therefore, it is necessary to study the act of the judge on promoting litigation comprehensively.In the part two the theory of the act of the judge on promoting litigation is elucidated. The nature of the act of the... |
