Research On The System Of Discovery Of Legal Viewpoint

Discovery of legal viewpoint means in the civil process, if both or one of the parties neglect some important legal viewpoints, or held inconsistent understanding and comprehension of law with the court, then the court must point out to him if it is going to use the different viewpoint as the basis of the decision, and the judge should discuss the case with the parties about the application and constitution of the law,in order to give them full opportunities to present their views, or the parties may apply for violations of procedural requirements on the grounds of appeal or retrial.It is different but linked between discovery and interpretation. Compared with the fact interpretation,the clarification in law application which is called "discovery of legal viewpoint" should be viewed as the core of interpretation. Discovery of the legal viewpoint is one of the obligations of judges. Its subject is the court,the object is the party,and the content is the important point of law which is relevan with the referee. The purpose of the discovery of legal viewpoint is to protect the parties’ participation power in the proceedings,and to avoid unexpected adjudication. To construct the system of discovery of legal viewpoint is very necessary, it is not only the value orientation of civil procedure, current and necessary requirement of the civil procedure model transformation, it is also the practical needs to practice the "Judicial Activism" concept, to establish the principle of the debate binding.In China,the legislation on the discovery of legal viewpoint is still very imperfect, although there are some useful explorations in judicial practice, having accumulated some experience, but there are still many problems. For example,the legislation does not clearly defined the subject, object, time, content, methods, effect and consequences of such violation of the discovery; in practice,when the judge discovery, they always do some improper disclosure such as lazy discovery,error disclosure or over disclosure, these problems make the parties dissatisfied with the verdict and going for an appeal petition, which to a certain extent affected the administration of justice and harmony. Therefore, the legislative theoretical and practical experience of the discovery of legal viewpoint need integration and innovation. It is imperative to construct the system of discovery of legal viewpoint for us,we should reference the mature extraterritorial legislation and judicial experience, take such a paradigm that to rely on the provisions of the civil procedure and relevant judicial interpretation as the legislative support, use case-guiding system and related systems to guide practice, follow the principles of searching for parties’true meaning,neutrally and moderately clarify, and clear provisions of law for the judge with the main body,situation, time, content, method and effectiveness of other aspects of the discovery,at the same time, provide relief rights to the parties if the judge do improper disclosure.