On The Study Of Judge’s Legal Point Interpretation Obligation

Traditional iura novit curia is viewed that the application of law is to belong to thepowers of a judge. However, in the dynamic judicial action, the fact and law are often closelylinked, interactive travel. Applicable law by the judge completely arbitrary, is likely to havelaws to raid against the referee, especially when the judge’s understanding of the essentialelements do not agree with the parties’ forecasting elements of legal norms. The problems ofapplicable law, moreover, are usually based on static substantive law hermeneutics to solve,and ignored the using the rules of procedure of litigation guaranteed, ignored the substantialparticipation of litigation of the parties. In civil law countries and regions, judge’s legal pointinterpretation obligation which fit the clarification obligations of the facts, is applied to solveproblems in practice. At present, the judicial practice in China still lack of the deserveattentions, and procedure guarantee rule set is not perfect. This article adopts the method ofanalysis, comparison and theory with practice,to elaborate the judge’s legal pointinterpretation obligation, in order to improve the legislation and practice of interpretationobligation,and put forward rational proposal.In this paper, the text of about forty-five thousand words, is divided into five parts:The first part: the problem is put forward. Through the analysis of the practical case andthe theoretical analysis of the process of syllogism, This part raises the basic question: iuranovit curia reduce the parties’ law proof burden in litigation, but it may lead to the occurrenceof raid against the judge in law. Traditional iura novit curia should be appropriatelycorrected.The second part: the judge’s legal point interpretation obligation in the perspective ofcomparative law. This part introduces the legislation and practice of the judge’s legal pointinterpretation obligation in Germany, France, Japan, Taiwan area. And it sums up thevaluable experience from it.The third part: the basic theory of the judge’s legal point interpretation obligation. Thetheory of the judge’s legal point interpretation obligation is based on the reflection of the iuranovit curia，collaborative essential fact retrieval,the implementation of centralized trial,aswell as the essence of the protection of the right to participate in the proceedings.The fourth part: the specific content of the judge’s legal point interpretation obligation.First of all, the applicable circumstances of the judge’s legal point interpretation obligation is: the partie(s) ignore and incorrectly assume legal point, legal point between the judge andparties is different, as well as the legal point of view is not clear. Second, its applicable periodencourage throughout the whole process of litigation obligations. Moreover, the legal viewsthat the judge pointed out do not have the mandatory effectiveness, otherwise the opinions theparties express is not entirely inhibited the judge. But when the judge did not fulfillobligations,it may make verdict was remanded for violation of program specification. Finally,around the debate and evaluation of legal discussion, the article puts forward the basicposition of rights distribution between the judge and the parties in the applicable law.The fifth part: the practical problem of obligation and consummation countermeasure inChina. Legislation in our country is extensive, the procedure law legislation is simple, thejudge operation specification is not clear. Our country should further set related lawsuitsystem and procedure to form a complete set, and strengthen and improve the technology andoperation specification.