Study On The Limitation Of Judge’s Illumination In China

As a legal system which was introduced to our country, Judge’s illumination is an important part of the civil law system. Germany first put forward the Judge’s illumination and embodied it into the civil procedure law. Because Germany realized that, when the legal system gave the parties ample debate doctrine and dispose doctrine, the function of the judge in litigation was weakened to a large extent which caused many adverse effects. Since modern times, the disadvantages of litigation pattern that the parties dominate gradually have revealed and been realized by more and more countries. Therefore, the authority of the judge in the civil lawsuit has been gradually strengthened in the civil law countries, such as Germany, Austria and so on. At the same time, some countries of Anglo-American law system also gradually take a similar approach. In other words, Judge’s illumination is the product of judge’s authority expansion of continental law system country. Unfortunately, neither our country’s law nor jurisprudence does not have systematical rule or study on Judge’s illumination, especially the limitation of Judge’s illumination. As the result, the judges are unable to exercise Judge’s illumination right under the unified standard, which may trigger a series of problems. For these reasons, this thesis studies on the issue of limitation of Judge’s illumination. In addition to the preface and epilogue, this thesis is divided into three parts.The first part introduces the basic theory of the interpretation right. This section explains the connotation of the judge’s illumination, divides types of the judge’s illumination according to two criteria, and then discusses the two issues related to the judge’s illumination. The study on the limitation of the judge’s illumination should be based on the analysis of the judge’s illumination. For this reason, this part is the foundation of the later discussions.The second part analyzes the necessity the limitation of the judge’s illumination. From two aspects——legislation and judicial practice, it analyzes the present situation of the judge’s illumination. And then the necessity the limitation of the judge’s illumination had been analyzed based on the present situation of the judge’s illumination.The last part suggests the application and improvement of China’s limitation of the judge’s illumination from the measures of definition, the refinement and enrichment of the relevant laws and regulations, the performing conditions, the judge’s legal responsibility when the judge improperly interprets, the improvement of professional quality of the judge and so on. Meanwhile, this part proposes four basic principles which the court should follow. At last, this part defined the specific limitation of the judge’s illumination from three aspects——procedural matters, substantive matters, the situations which are not suitable for the judge’s illumination.