On Judge 's Right

Judge's interpretation right is one of the most important systems existed in civil procedure of continent law. The reasonable existence lies in complementing and amending adversary system, rectifying the defect of injustice, delay and increased cost caused by complete panty during the litigation, ensuring the two side parties to participate in the litigation equally and sufficiently. Solving the real cause of the case to the maximum extent and then realizing the proper solution of the paradox. Recently it is the common alternative to strengthen judge's elucidatory authority in the two models of civil procedure countries. Although we are making a transition from pure authority system to party system, still, the building of the elucidatory authority system, which is not complete in the civil litigation. Therefore, it is especially important to establish judge's interpretation right, regardless of the proceeding reform towards civil legal or our diverting civil litigation model. Considering all, in the paper, the author decided to make some research on elucidatory authority system. This article contains the following four parts:The first part: The law and reason analysis of Judge's interpretation right. In this part, the author makes a systematical analysis and introduction on the definition, the character, the type, the applicable range and the relationship between interpretation right and adversary system. In the theoretical world, it is the common perspective that the concept of Judge's interpretation right contains both right and liability and complement but not restriction of adversary system.The second part: The history and law making practice in Judge's interpretation right. The author introduces the background of the interpretation right. He makes the presentation in the present situation and law making reform in the two models of civil procedure countries, and then draws the conclusion that weakening traditional party system principle and strengthening judge's power is the world's tendency in the process of civil litigation reform, which will ensure our meditation in the course ofdiverting to the party system model development in our civil litigation reform.The third part: The current legislation and legal practice in interpretation right in our country. By the introduction on the current legislation and legal practice in the surface and operation aspects in the elucidatory authority in our country, and demonstrates the necessity of interpretation right's construction and perfection.The forth part: To perfect the system of Judge's interpretation right in china. On the basis of academic analysis, combining with legal practice, the author ought to illuminate the common principle of interpretation right, the nature, the stages, the methods the scope of the application of it and supposes the remedy of wrong interpretation right. The concept of judge's interpretation right and liability in legislation; the scope of interpretation power exercise contains: the interpretation towards party example, the interpretation on implicit and insufficient during the litigation respect, the interpretation upon obviously inappropriate litigation behave, the interpretation on the applicable law, the way of interpretation power is composed of three courses, that is question, speak, public evidence. There are different scopes and ways in different stages of the interpretation power exercise in civil litigation, the judge ought to exercise in the scope of party's presentation on the basis of adversary system, at the same time, he should be obliged to interpret to parties from the principle of neutrality, public, transparent and fair; regarding the judge's inappropriate interpretation, the party has the right to put up different points, discuss twice and litigation.