Research On The Application Of Paragraph 1 Of Article 35 Of The Civil Evidence Regulations

Article 35,paragraph 1,of Several Provisions of the Supreme People’s Court on Evidence in Civil Procedures(hereinafter referred to as "Provisions on Evidence in Civil Procedure")stipulate that judge should inform party concerned to alter the claims.Civil litigation theorists have done a lot of research on this provision,and the practical circles have also conducted a number of investigations on the implementation of this provision.The research productions have been already abundant.However,there are still some shortcomings in the previous researches.On the one hand,the concept of interpretation has not been adopted in China’s legislation,and most scholars directly equate the information obligation of the judge with the interpretation,without rigorous argumentation on whether the information obligation belongs to the category of interpretation.On the other hand,it is difficult for judges to grasp the scope and extent of informing properly,which leads to inconsistency,insufficiency and even excess of informing matters.In view of the above problems,this paper firstly demonstrates that the information obligation of the judge belongs to the category of interpretation.On this basis,focusing on the nature of the legal relations and the validity of the civil acts,this paper intends to investigates the operation of the first paragraph of this provision in judicial practice through case retrieval and collection,and analyses the typical problems in practice.Through the description of this paper,the content of interpretation is the nature of legal relations or the validity of civil acts as determined by the court.If the former causes the change of litigation request,the content should also include litigation request.As for the interpretation in the second instance procedure,the court’s judgment should be based on the principle of quashing the original judgment when mediation fails and remanding for new retrial,with the exception of the judgement amended by the court of the second instance.When the party concerned do not respond to the court’s interpretation,the court shall reject the claims substantially.For the improper interpretation of the court,the court at the corresponding level may correct itself,and it can also be corrected through retrial procedures.In order to solve the problem of disunity standard of interpretation,this paper proposes that the interpretation rules of typified cases can be established for typical and universal cases.When interpretating the validity of a contract,the court should take into account the particularities of different types of contracts.For the construction contract,in the case that the project involved has been completed and passed the acceptance,although the validity of the construction contract will not have a practical impact on the litigation request of the parties to apply for payment of the project funds,the court still have the information obligation.