On The Aufklaerung On The Demurrer Of The Parties By The Judge

As for the limitation of action and the adjustment of liquidated damages for the defense of the same party,the Supreme People's Court has made different provisions on whether the defensed party should be clarified according to Limitation of Action Regulations and Judicial Interpretation of Sales Contracts.Therefore,there is confusion with whether the judges in judicial practice have explicitly clarified the other defense of the party,such as uneasy defense and defense over the guarantee period.It could be seen that the issue of whether to explain the defense of the parties has become an unavoidable and urgent issue for both theoretical and practical circles.The first part mainly expounds the concept and current situation of the judge's interpretation of the parties' defense,mainly aiming at the concept and current situation of the interpretation of the defense as well as the legislative and judicial situation of the interpretation of the defense in China,so as to have a deeper understanding of the concept and operation of the system of the judge's interpretation of the parties' defense of civil litigation in China.As for the limitation of action and the adjustment of liquidated damages for the defense of the same party,the Supreme People's Court has made different provisions on whether the defensed party should be clarified according to Limitation of Action Regulations and Judicial Interpretation of Sales Contracts.Therefore,there is confusion with whether the judges in judicial practice have explicitly clarified the other defense of the party,such as uneasy defense and defense over the guarantee period.It could be seen that the issue of whether to explain the defense of the parties has become an unavoidable and urgent issue for both theoretical and practical circles.Based on the problems existing in the legislation of the judge's interpretation in the parties' defense as well as judicial practice,this paper aims to analyze the causes of the problems and puts forward corresponding countermeasures,combining with the problems existing in the legislation and judicial practice.This paper is logically divided into four parts according to the ideas of putting forward,analyzing and solving problems:The first part mainly expounds the concept and current situation of the judge's interpretation on the parties' defense.It mainly aims to systematically analyze the concept,current situation of the interpretation on the defense as well as the legislative and judicial situation in China so that it could have a deeper understanding on the concept and operation of the system of the judge's interpretation of the parties' defense of civil litigation in China.The second part mainly discusses the problems existing in the judge's interpretation on the parties' defense.The legislative problems are as follows: it is not clear on the legal nature of the parties' defense interpretation;it is lack of legal consequences on the judge's improper explanation to the litigant's defense.The problems in practice are mainly reflected in the fact that judges do not make it distinguishable from civil substantive defense,procedural defense,the concepts of factual defense and right defense when interpreting the law.The third part mainly discusses the reasons why there are problems for the judge in explaining for the parties' defense.They are : the contradiction between restricting the judge's power and pursuing substantive justice;in sufficient regulation for judges in current legislation;lack of awareness of typological analysis and handling in practice;the undifferentiated concept between defense and right of defense,which leads to the failure in forming the operational standard that defense should be clarified while right of defense shall not be clarified in practice.The fourth part is the suggestions to perfect judge's explanation on the parties' defense.That is to clarify the principle of distinguishing the legal nature of the parties' defense interpretation: making it the right of judges to actively interpret while the obligations of judges to passively interpret;making it clear of the legal consequences of improper interpretation on the parties' defense as well as the legal consequences of non-interpretation and over-interpretation;giving a specific distinction between civil substantive defense and procedural defense and its interpretation rules include: defining the criteria for the distinction between the two and clarifying the interpretation rules of procedural defense and substantive defense.