论法官释明权的行使限度

发布时间：2018-11-24 15:30

【摘要】：释明是指法院为明确诉讼关系,向当事人发问或敦促其提供证明,以及法院通过指出当事人遗漏的法律事项给予其陈述的机会。释明权是法官审判职权中的一项权能,在诉讼中有效的释明能够促进法官与当事人之间的交流沟通,法官通过释明,能够探明当事人的诉求,避免纠纷解决偏离当事人本意。同时,释明权能够使法官将自己的心证及相关法律的见解适时向当事人双方反馈以便当事人调整自己的请求、主张及攻击防御方法,避免所谓突袭裁判,从而增强裁判的公信度和执行力,实现实质公平正义。但是,我国对释明权的规定很少,仅在司法解释中有少部分的涉及。我国对释明权的规定存在着法律规范的表现形式位阶低,对释明权的具体含义、行使的基本原则、法官释明时应受到的各项限制、法官不当释明及错误释明的法律后果均没有作出明确的规定。笔者通过对审判实践中案例的总结分析,概括出了法官在行使释明权是应遵循的几项基本原则,即法官行使释明应探求当事人真实意思的基础上尊重当事人的选择权,行使释明时应中立公开,行使限度以必要和适度为限,应始终坚持司法公正。同时,笔者通过案例总结分析了释明权是应受到各种限制。并对在案件审理过程中的几种释明情况一一进行了罗列和分析,根据释明权所对应的诉讼模式,并找出了不适用释明权的几类特殊案件。由于我国民事诉讼基本制度的不断发展,在民事诉讼中确立和完善释明权制度成为目前迫切的需求,所以在文章的最后,笔者结合我国释明权的现状,结合实践中所遇见的具体案例,找出了建立完善的释明权制度的几项措施。
[Abstract]:Interpretation means that the court, in order to clarify the litigation relationship, questions or urges the parties to provide proof, and the court gives them the opportunity to state by pointing out the legal matters omitted by the parties. The right of interpretation is one of the powers in the judge's judicial power. The effective interpretation in the lawsuit can promote the communication between the judge and the parties. Through the interpretation, the judge can find out the demands of the parties and avoid the dispute settlement deviating from the original intention of the parties. At the same time, the power of interpretation can enable the judge to give timely feedback to both parties about his own evidence and the opinions of the relevant law so that the parties can adjust their requests, advocate and attack defensive methods, and avoid the so-called surprise judgment. So as to enhance the credibility and execution of the referee, to achieve substantive fairness and justice. However, there are few regulations on the right of interpretation in our country, and only a few are involved in judicial interpretation. In our country, there is a low level of expression of legal norms in the provisions of the right of interpretation, the specific meaning of the right of interpretation, the basic principles of its exercise, and the restrictions that the judge should be subjected to when he interprets it. The legal consequences of misinterpretation and misinterpretation by judges are not clearly defined. By summing up and analyzing the cases in trial practice, the author generalizes several basic principles that the judge should follow in exercising his right of interpretation, that is, the judge should respect the party's right of choice on the basis of seeking the true meaning of the party concerned. The interpretation should be neutral and open, the limit of exercise should be limited to necessity and moderation, and judicial justice should always be adhered to. At the same time, the author summarized and analyzed that the right of interpretation should be restricted by a variety of cases. The author lists and analyzes several kinds of interpretation cases in the process of case trial, and finds out some special cases which are not applicable to the interpretation right according to the corresponding litigation mode of the right of interpretation. Because of the continuous development of the basic system of civil action in our country, it is urgent to establish and perfect the system of the right of interpretation in civil litigation. So at the end of the article, the author combines the present situation of the right of interpretation in our country. Combined with the concrete cases in practice, several measures to establish perfect system of interpretation right are found out.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.2

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