On Clarification In Civil Litigation

Civil litigation pursues the two values of justice and efficiency, and thereasonable application of clarification is capable of ensuring the justice of entity,increasing the efficiency of litigation, discovering the truth of the case, preventing thesurprise of judgment, and enhancing the persuasion of the sentence, which isconsistent with the value pursued by civil litigation. In recent years, with thedeepening of judicial reform, the mode of civil litigation in China is fundamentallychanged. Under the new mode of litigation, the judge does not have the absolutepower, instead the responsibility of the litigant and the limited assist are emphasizedto achieve the ultimate goal of judicial justice. However, how to achieve the balancebetween the two is of top priority, but the construct of the system of clarification inlegislation is weak. On that account, the study of the system of clarification is of greatpractical significance. Therefore, study is conducted on how to perfect the system ofclarification with reference of the author’s learning and working experience.Clarification in civil litigation is the specific judicial method or judicial behaviorof the judge with the aim of achieving the aim of civil litigation, realizing the justiceand fairness of society, eliminating the conflicts of litigant, guaranteeing the socialstability and resolving the case. The following mechanisms are included: Firstly,clarification is the suggestion of the judge according to the appeal of the litigant, thefact, the proof and the essence of the legal relation, which is judged and accepted bythe litigant; Secondly, clarification is the prompt of the judge according to theincomplete or ambiguous fact or proof of the litigant, in order to guarantee thesubstantial justice in the process of litigation to the largest extent; Thirdly,clarification is the necessary method of the judge to direct the litigant to accomplishthe litigation process; Fourthly, the scope, degree and boundary of clarificationbelong to discretion. The practical significance of clarification lies in that the judgeand litigant can find proper basis and method in grand system of civil law to solveindividual cases, thus the litigant can consciously accept and obey the sentence of thecourt and resolve the disputes. Clarification should be restricted by the followings: Firstly, the vocationalconscience of the judge. The judge should conduct clarification with full good faithaccording to the grasped legal knowledge, based on the vocational conscience;Secondly, the moral integrity of the judge. The judge should not conduct clarificationfor inappropriate purpose; Thirdly, following the rules of law. The clarification shallnot be conducted beyond the law.The following principles shall be followed when conducting clarification: Thefirst is the principle of neutrality. The appeal of the litigant shall be treated equallyand impartially. The second is the principle of moderate openness. When the judgeconducts clarification, it needs to be conducted openly to let litigants of the twoparties know and conduct the clarification in a certain period. The judge shall notmisuse the authority, conduct the clarification overly, encroach on the disposition ofthe litigant, nor ignore the disposition to impair the litigious right of litigant. The thirdis the principle of full good faith. The judge shall clarify the legal points to the litigantout of the pure judicial conscience, with the full good faith to understand legislativespirit. On the basis of sticking to the above principles, the system with the judicialexplanation as the leading specification shall be established to give the judicialexplanation a play in directing the judicial practice.The pattern and function of clarification in the phases of civil litigation: Firstly,the phase of putting on record. The judge shall conduct proper clarification to thestandard of putting on record, legal proceedings, the possible litigation resultconsidering the specific conditions such as capacity to action of the litigant to let thelitigant to have a primary judgment of the litigation outcome; Secondly, the judgeshall have a grasp of the property of the legal relation in the case, especially of thefocus of the disputes according to the appeal of litigant in two parties, opinions ofdefense, the fact and the proof in the preparation before the trial. When it is necessary,the judge shall clarify the focus of disputes to direct the litigant to have a full grasp ofthe property of the case; Thirdly, the phase of trial is the most important phase ofclarification. The judge shall correctly conclude the focus of the disputes in the caseand inform the litigant in two parties of the focus of the disputes according to theappeal, fact and proof of the litigant to let litigant know about the center of the trial and lead the litigant to debate over the focus of the disputes so that the debate oflitigant may play an important role in the judgment.Rules and regulations shall be set up for violating clarification in Law of CivilProcedure. The first is that the litigant has the right to raise objection to inappropriateclarification in written form and the judge responds in the form of ruling, which isbeneficial to supervise and evaluate the judge inside the court; The second is that thelitigant has the right to remedy the possible loss of litigation interest in theinappropriate clarification though appealing or retrial; The third is that institutionalrestriction can be achieved by the administrative management level inside the courtby liability investigation or relevant trial discipline of misjudged cases and cases withdefects so that the legal liability of violating clarification of the judge can be set upand the remedy can be conducted according to the loss of the right of the litigant.