法官阐明制度理论基础探析

Study on Theoretical Basis of Judge's Expounding System

最高人民法院关于民事证据的若干规定首次规定了法官阐明的内容,目前审判实务中大多数的法官对阐明制度还很陌生,并对之存有各种疑惑。笔者从当事人和法官的关系出发探讨法官阐明的理论基础,联系我国实际,具体就阐明和诉讼指挥权,阐明和处分原则、辩论原则之间的关系进行了论述,希冀能对我国司法实践部门的法律适用有所帮助。

Judge's expounding(Richterliche Aufklrung) is an important legal system of the civil procedure under the market economy. China has defined some relevant parts on Judge's expounding based on the judicial interpretation. In trials, however, most judges still have doubts. This article, then, tends to explore the theoretical basis of judge's expounding by studying the relationship between the judge and the party involved, and at the same time, tries to elaborate the relationship between expounding and litigating directing, expounding and managing and deciding right doctrine, expounding and doctrine of argument, thus to make some contributions to the legal application of China's judiciary.