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Study On The Fiduciary Duty Of The Judge In Civil Procedure

Posted on:2017-05-16Degree:MasterType:Thesis
Country:ChinaCandidate:X Y NiuFull Text:PDF
GTID:2336330512451318Subject:legal
Abstract/Summary:PDF Full Text Request
The Article 13 of the newly revised Civil Procedure Law of the People's Republic of China In 2012 states:"Civil Procedure.shall follow the principle of honesty and credit".This provision not only makes the principle of honesty and credit in China's civil procedure area has been established,but also marks this principle become a foundation principle that should be observed in the civil substantive law and the civil procedural law field.Although the law confirmed the status of the principle of good faith in civil action,from the existing research results about the principle of good faith,the academia still has great controversy about what subject shall apply the principle of good faith in civil procedure,especially whether the behavior of the court and the judge should be restricted because of the principle of good faith.Starting from the requirements provided by the principle of good faith for judge,under the premise of the analysis of these basic requirements,this paper puts forward some suggestions to improve the judge's dishonest behavior performance among judicial practice,and hope to proposes a useful reference,which can regulate the judge's action and promote the improvement of judicial credibility.Text of this paper is divided into three parts:The first part focuses on the requirements provided by the principle of good faith for judge.The primary coverage of this part are why the judge should follow the principle of good faith,what are the requirements the judge should abide by according to the principle of good faith,and the responsibility the judge should take when he violate the duty of fiduciary.Then the author notes that prohibition of abuse of discretion,the legitimate exercise of the Interpretation Right,unconcealed heart certificate reasons and prohibiting the attacks of referees are the specific requirements provided by the principle of good faith for judge.Finally,the author points out that the judge may assume the responsibility of the substantive law and the procedural law if he violate the duty of good faith.The second part focuses on the performance of the judge in breach of the duty of good faith in civil actions and the analysis about the reasons.According to the requirements provided by the principle of good faith for judge,the author points out that abuse of discretion,non-compliance with obligations correctly Interpretation,low level of openness in heart certificate and the litigation raid are behaviors of the judge in breach of the duty of good faith in litigation practice.Then,the author elaborates that the lack of legal provisions,the influence of personal accomplishment and professional quality of judges,lack of effective supervision over the judges and outside interference are the causes of the above problems.The third part focuses on the suggestions to improve the ability of judges to perform their duties of good faith.Guided by the principle of good faith,aiming at the existing problem of good faith obligations in the practice of the judge and the reasons that cause the problems,the author put forward the idea on improvement,such as:perfecting the legislation,improving the quality of judges,establishing the concept of integrity of judges,and strengthening the concrete system construction to regulate judges' behavior.
Keywords/Search Tags:judge, civil action, the duty of good faith, improvement
PDF Full Text Request
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