| Now, two litigation modes of the adversary system and the authority system exist in the civil action system of world. The born, existence and development of the two modes had close connection with their economic basis, historical culture, moral ethic and basic science of law, and played active and important roles in their respective field. With the diversification of social development, the social need also appears state of diversification. So no litigation mode is perfect. Differentiating litigation mode unitarily and strictly leads to limitations can't be made up. In order to adapt to speedy economy development, the adversary system is replacing dominant status of the authority system to bring into playing positive effect.Under the condition of the principle of debate and the principle of disposition, the court should supply aids to one party who is disadvantage in lawsuit because he isn't good at solvency, law knowledge, lawsuit experience and so on. Emphasis on obligation of judge's clarification is helpful to change the state of unbalance between parties and guarantee the parties' litigation right. That is, on the basis of judge's clarification to the whole case and relevant law problem, the parties can make right decision and ensure their equality. Clarification right of the judge is not only to keep parties' essential equality, but also to avoid raid from judge when the parties have disputed properly and completely. Justice will become raid in that judge chooses wrong cognizance of facts, wrong experience rules, and such raid can not be avoided depending on the principle of disposition. The goal of taking on obligation of judge's clarification is consolidatingparties' status and maintaining litigation cost. Strengthening obligation of judge's clarification makes for opening process of trial, any party foreseeing trial results and averting any party from estimating cases. The important function of clarification is to prevent raid from judges, while the"clarification can't affect their independence and neutrality. Now problem to how to exert clarification right appeared. So clarification right will guarantee the party who is weak in lawsuit not in economic and social strength to choose and make decision freely in lawsuit. It's no use to emphasis on supply proper procedure blindly not provide ensure measures. In order to give parties real procedure guarantee and realize equality between parties, the judge should scale their gap and respective strength. For example, the judge will get difference results when he clarifies relevant problems to lawyers or law professors and explains to illiteracy. In my opinion, the right or the duty of clarification is according as respecting man's dignity. And the root of said right or obligation in law comes from basic rights endowed by Constitution s.uch as equal litigation, equal property right and freedom. The right makes the parties have possibility to pursue benefits of entity and procedure. The judges exerting clarification complement and amend adversary system, at the same time, it is the cross of adversary system and the authority system. The legislation goal of right of clarification is to find out real facts to protect parties' benefits on entity and procedure law, even to manage to their consonance and balance, that is, the balance of pursuing real facts and promoting litigation the parties can accept andtrust.In my thesis, by introducing the design and theory on system of clarification and how to exert the right in othercountries, I analyze the necessity and possibility of setting up such system and propose the construct of such system in my country. I hope the transplant of this system to affect our procedure law system actively. |
