Font Size: a A A

Judge 's Right

Posted on:2007-03-22Degree:MasterType:Thesis
Country:ChinaCandidate:D H HaoFull Text:PDF
GTID:2206360182490807Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
China is now experiencing the transformation of the civil procedure, with the basic tendency from ex officio pattern to adversary system. During this process, the power of the judge and the right of the litigant need a rearrangement. According to the pattern of adversary system, litigant is responsible for the plea and evidence, and the judge mustn't interfere. While on the other hand, the judge should ensure that the judgments are based on the facts, thus the concept of judge interpretation came into being.As generally agreed, the proper usage of judge interpretation could guarantee the substantial justice, which overcomes the deficiency that caused by classical argumentum. On one hand, with judge interpretation, the litigants could bring out evidence more correctly and adequately, which helps the litigants to achieve the substantial benefit. And on the other hand, it could ensure the equal positions of the litigants, on which they could be involved in the procedure substantially and influentially, and since the judgments made under interpretation could be more convincing, appeals and applies for retrial could be much lessened, thus helps them to achieve the procedural benefit.Nevertheless, improper usage of judge interpretation may harm the procedural justice. If the judge thought the litigant in uneven positions, and gave advice to one party only, it may damage the equality between the litigants. To sum up, the legislation and operation of our judge interpretation needs an overall research.This paper, which has about 35,000 words, includes three main parts: foreword, text and conclusion.The foreword gives a brief introduction of the recent research on judge interpretation in foreign countries, and clarifies the writing method and purpose.The text comprises three chapters: summary account of judge interpretation, theoretical research on judge interpretation and the building of judge interpretation in our civil procedure.Chapter Ⅰ: summary account of judge interpretation. Starting with the basic concept, this part introduces the categories, nature, range and methods of application with a view of comparative law, thus lays the basis for the following parts.Chapter Ⅱ: theoretical research on judge interpretation. This part describes thevalue of judge interpretation and some relevant issues, which are argumentum, litigant's jus disponendi and the disclosure of the evaluation of evidence. The discussion focuses especially on their relations with judge interpretation, in order to give an in-depth study.Chapter III: building of judge interpretation in our civil procedure. Some independent points and suggestions are made in this part, hoping it helpful for the practical operations. In the first place, a brief introduction of our present regulations on judge interpretation is given, thus the necessity of the rebuilding it is made clear. Then, a whole rebuilding plan is brought forward, including the functions, premise, principles, contents, conditions and remedies. At the end of this part, the judge's quality is stressed. All in all, on the condition that present civil procedure is still affected by ex officio pattern, the establishment of judge interpretation will be a long progress.In the conclusion, the writer reiterates the basic principles of judge interpretation: fair and open, and indicates that the reasonable part of ex officio pattern and adversary system should both be made use of.
Keywords/Search Tags:Judge Interpretation, Argumentum, The Disclosure of The Evaluation of Evidence, Building
PDF Full Text Request
Related items