On The Limits Of Judge's Elucidatory In Civil Procedure

Since the promulgation of the " Some Provisions of the Supreme People's Court on Evidence in Civil Procedures" in 2001,the interpretation system has aroused extensive discussion in China's academic circles.Various high courts have made extensive regulations on the practical application of interpretation.The judge explained within a reasonable range not only the protection of the parties 'substantive rights and procedural interests,but also the judicial justice and the improvement of the credibility of the law.However,due to the lack of higher-level legislative guidance,there are inconsistencies or even contradictions between the legislative and judicial interpretations,and between judicial interpretations and judicial documents.This article combines the legislative status and theoretical disputes of the interpreted objects,analyzes the practical status of the different interpreted objects,and determines the contradictions and disputes of the actual regulations.Analyze the influencing factors of interpretation through the purpose of civil procedure,values of civil procedure,litigation models,and Judge's elucidatory values,etc.,and clarifies that the establishment of China 's interpretation system should be carried out in the context of the construction of the litigation model of litigantism.Interpretation should be limited by the principles of adversary system;inquisitorial system,criticizing the relevant Some of the judicial provisions of the interpretation are too pursuing the one-time solution of disputes,and finally put forward suggestions on the determination of the interpretation boundaries of different interpretation objects.This article consists of three parts,the main contents are as follows:The first part is mainly to determine the contradictions and disputes of the actual regulations,and organize the existing legislation,judicial interpretations and judicial documents of the high courts in various places into litigation requests,defense rights,fact and evidence claims,and legal opinion interpretation,and focus on the interpretation controversy of the four interpretation objects.The second part is a detailed analysis of various factors that affect the scope of interpretation.This chapter analyzes its impact on interpretation from the purpose of civil procedure,the value orientation of civil procedure,the litigation model and the value of interpretation,emphasizing the diversification of civil procedure teleology,but there is a difference in priority between purposes and cannot be Blindly pursue the litigation economy and excessively expand the scope of interpretation;currently in the construction of the litigation model of litigantism,the interpretation of judges should be regulated by the principles of debate and punishment,and the theory of expanding the scope of interpretation in accordance with the collaborative litigation model is impossible The purpose of interpretation is different from justification.The actual provisions of interpretation should follow the legitimate purpose of interpretation.The third part is to analyze the specific interpretation objects in combination with the influencing factors,and make suggestions on the determination of the boundaries.First of all,the interpretation of claim should follow the boundary between the parties 'true intentions and the factual boundaries claimed by the parties.For partial requests that cannot be re-submitted and have a “loss of claim ” effect,if the purpose of the“ loss of claim ”effect is set for solving the disputes together,the judge can exceptionally break this boundary.Secondly,the interpretation of the right of defense.,after distinguishing between the defense of facts and the right of defense,the interpretation of the right of defense should only explain the parties' translation of life language into legal language if the parties present the facts and legal consequences of the rights constituting the elements.Thirdly,the interpretation at the level of the fact claim,if it is the fact that the judge's power in the public interest is involved in the field of discovery,and the party does not claim it and the court wants to use it as the basis for the judgment,the judge should explain it;the interpretation at the level of the evidence claim,After distinguishing whether it is the interpretation of the burden of proof or the disclosure of the judge 's proof,the interpretation of the burden of proof belongs to the category that should be explained.Finally,the legal point of view explains that if the court determines that the nature of the legal relationship is different from the facts of the case or that the effectiveness of the civil action is inconsistent with the parties 'determination,the court should explain it to prevent a surprise raid without full debate by the parties.