On Judge 's Right

The concept of Judge Interpretation plays a very important role in the civil procedure in continental legal system. The common opinion points out that, without Judge Interpretation, the civil procedure cannot work well and reach its planned aim. Judge Interpretation, which is called "Aufklarungsrecht" in Germany, originates from German civil law system and is now wildly used in most of the civil law countries and districts. It is such a power that during the litigation, when party's proposition or opinion is unclear, insufficient, or inadequate, judge can ask, remind, or illuminate him to clarify some facts, make necessary corrections, and this can combine the justice of procedure and the justice of essence. In adversary system, litigation is ineffident because of the lack of judge's lead and control, and the litigation costs are very high. The establishment of Judge Interpretation system can effectively overcome the limitations of adversary system, such as litigation delay and fee increasement, it also can maintain the balance of litigation ability between parties and to balance the power of the judge and the right of the litigant during the transition.In our country, authority system has been the litigation pattern for a long time. Court plays an important role in civil litigation, and the judge has adequate command power of litigation, so it is reasonable for judge to ask each party. The transition of Civil Procedure pattern of China is getting more and more attention. Constructing of Judge Interpretation has its special significance. A judge is not only the judicator of civil disputes but the controller of civil procedure. Judge Interpretation comes from the need of appropriate and justice judgment, with the aim to lead the civil procedure progresses in order.In this article, the author tries to discuss how to perfect the roles of Judge Interpretation by combining with legislations of and comprehensions to foreign countries and districts. This article contains five parts. The first part analyzes from the definition, the character and the function of Judge Interpretation, especially the character of Judge Interpretation, and has the conclusion that, the concept of Judge Interpretation contains both power and liability. The second part analyzes Judge Interpretation in different countries. The author not only summarizes the general rule applicable in all countries and districts, but also the nuance arising from difference of litigation systems. The third part compares Judge Interpretation with other concepts, espedally compares this two concepts, Judge Interpretation and the doctrine of debate, in order to illustrate the concept of Judge Interpretation more clearly. The forth part analyzes Judge Interpretation from our country's reality. Though authority system is the litigation pattern in China now, because of certain misunderstandings and illegible opinions to the concept of Judge Interpretation in academia and legal practice, provisions in connection with Judge Interpretation are fragmentary, but within the transition of Civil Procedure pattern, there is also the importance to the exist of Judge Interpretation. The last part analyzes the exercise of Judge Interpretation. This part contains how to interpret by Judge during the litigation, especially the rescue methods of the inappropriate Judge Interpretation.