Study On Judge's Elucidation In The Contract Litigation

Contract law as the basic of Chinese traditional civil law,which clearly defined the establishment,effectiveness,species or the establishment of substantive legal relations on contract,the establishment of substantive legal relations are usually expressed as essential facts in the contract litigation.Lots of things are to be specified by the Supreme People's Court in the form of judicial interpretation,such as the burden of proof,the standards of proof,which are considerable complexity in the legislation.In judicial practice,lots of people are not honest,knowledge level is limited and the legal literacy is not high.The market economy is changing rapidly or misunderstanding situations often occur.In addition,there is a time interval between the parties signing the contract and proceeding.This makes it more difficult to prove the essential facts of contract.In the theoretical,both substantive law such as contract law and procedural law on judge's elucidation have not yet formed a system,and the research on the combination of substantive law and procedural law is also lacking.Even there are some courts have explored the judge's elucidation in contract litigation,it doesn't form an authoritative generally applicability of the specific rules.Therefore,the judge's elucidation in contract litigation is more necessity and important.So,the purpose of this paper is to demonstrate on the judge's elucidation in contract litigation,and to make it more operational.This paper makes empirical analysis,theoretical analysis and comparative analysis in all the four parts,which is more than 40,000 words totally.The first part: An analysis of the necessary of judge's elucidation in contract litigation.Both substantive law and procedural law on the contract are very complex in legislation,and the legislative language itself is uncertain in most cases.In fact,the judges' and parties' level are mixed and the number of contract litigation is great.To solve the issues that arise in the process of judge's elucidation,we should take advantage of the wisdom of the jurist,at the same time to apply the requirement of refinement of theoretical research,and to promote the perfection of litigation.The second part: An analysis of the present of judge's elucidation in contract litigation.Firstly,there are very few legislative provisions and don't form a complete legislative system and relief mechanism.Secondly,judge's elucidation is irregular and not the same sometimes,the parties are also not binding,which have made it more difficult to apply.The third part: A comparative analysis of judge's elucidation in contract litigation.Substantive laws in foreign countries are closely,and relative supporting systems are very perfect,which make the judge's elucidation in contract litigation more smooth.The last but not the least,all these show that the judge's concept is changed from the individual to the social.The forth part: The concrete suggestion of judge's elucidation in contract litigation.The judge should clarify the details,lawsuit relationships,validity of contract,claims of the parties' and so on.At the same time to improve the relevant supporting system,such as enforce the lawyer to join in the litigation or give the party a relief when it needs.