Study on Judge Interpretation in Civil Litigation of China
|Keywords||Judge Interpretation Debate Doctrine Discretion|
Judge interpretation is originated in Germany, later, widely used in civil lawcountries and regions. Although there is no explicitly concept of judge interpretationin common law countries, but there is a similar system in the legal. Judgeinterpretation is considered to have equal protection of the clients and prevent fromthe judges raid referees in the proceedings. Therefore, strengthening the judgeinterpretation is a common choice of the countries. Judge interpretation is based onthe debate doctrine. It has multiple functions, overcomes the drawbacks of the partydoctrine, and achieves multi-value. Now we are in the process of conversion ofpowers of office of litigation to the parties’ litigation mode. We should be wary of thedrawbacks of powers of office of litigation and the parties’ litigation. It is importantfor us to introduction and to learn from judge interpretation. This paper investigatedby reality and logic analysis. By examining the theory of judge interpretation and thecurrent situation of judge interpretation of China, offer a proposal for theshortcomings of our judge interpretation. Full text is divided into three parts exceptpreface and epilogue.The first part is basic theories of judge interpretation. Clear the basic meaningof the judge interpretation. It is the powers of office of judges to make the claims,statements or evidences of parties clear, adequate and appropriate. By introducingthe debate of the nature of judge interpretation, clear the nature of judgeinterpretation is the powers of office of judges. Introduced the classification of judgeinterpretation, highlighted the positive and negative. Judge interpretation is based onthe debate doctrine and makes the debate doctrine better. After analyzing thefunctionality doctrine of judge interpretation, its function is a diverse and opensystem.The second part is the status quo of judge interpretation of China. Analyzed thespecial significance for our country, it can make party doctrine better and achieve successful transition. When the command is over used, it can standardize thecommand by providing relief channels. Analyzed the institutional basis of judgeinterpretation, we have a preliminary institutional basis with the conversion of thelitigation model. Through observing and studying the legislative situation of judgeinterpretation of our country, find out the shortcomings of it. The shortcomings areno uniform requirement, have a narrow range and no channels for relief in our legal.Through observing and studying the practice of judge interpretation of our country, itis spontaneous and diverse.The third part is to perfect judge interpretation of China. In the process ofimproving our judge interpretation, first of all, we must make a clear aim of judgeinterpretation. The aim is to achieve equal exchanging between the judges and theparties, and effective communication between the parties. Judge interpretation isbased on the debate doctrine. The establishment of judge interpretation and debatedoctrine should be combined. Judge interpretation is a complete system and it shouldbe continued to improve in practice. We should make judge interpretation in ourlegal, and make it to be functions and powers of judges. We should make theprinciple of proportionality and neutrality in the law. Broaden the scope of judgeinterpretation, based on negative and positive. When the litigant request isindeterminate or inappropriate or behavior is inappropriate, judges should exercise inthe scope of the parties to exercise. When the request and evidence is not sufficientor the legal point of view is not appropriate, judges should prove the real intention ofthe parties within the scope of the parties has been stated. Build channels for relief ofjudge interpretation, provide the legal consequences of un-interpretation andover-interpretation. The mode conversion of China is a long-term and gradual work.It is a long-term and systematic project to establish judge interpretation.