民事法官能动权论要

Abstract

The civil judges' power vested in interpretation of the law, balancing and choosing the applicable law, and filling the legal loopholes are all important parts of the civil trial power. For a long time, our country upholds the concept advocated universal code of law, pursuing the premise and the small premise to obtain results of referee’s way of deduction, rejecting and suppressing the active power of civil judges. This is inseparable with our country economic social development vicissitude, the power pattern and the judicial power logic. With the increasing international interaction and the acceleration of the global integration process, the field of civil trials in various countries are all presenting a tendency of expanding judge’s active power. Under the guidance of the judicial policy, in our country (or mainland China?), it is an indisputable fact that our judge has applied their active power to solve disputes and respond to social reality needs in case that the law stipulation is vague, the law stipulates the conflict, the law stipulation omission and applicable legal provisions lead to case injustice. However, since the legislation does not confirm the judge's active power, based on the priority of private law, the autonomy of meaning and “Judge must not refuse the referee”, the judge can only use the active power to rectify and fill law’s defects, which inevitably leads to the state of “disorder”. The prerequisites for the exercise of the active power of the judge are the confirmation and regulation from legislation. On the conceptual level, the main problem needs to solve is that some people don’t understand the active power of judge and lack the understanding the transform from “text law” to “practice law”. On the theoretical level, it is necessary to clarify the relationship between the judge's active power and the civil trial power and the relationship between the judge's active power and the legislative power. On the practical level, it is necessary to solve the problem of the unclear scope of judge’s active power, the insufficiency regulation of judge’s active power, the anomie of active power operation methods and the poor active power safeguard measures. With the analyzing and solving the above problems, it is more convinced that the judge's active power is not the judge’s power expansion. The judge's active power is not the reason to judicial injustice, instead, it shows the essential characteristics of justice. From the perspective of safeguarding civil rights, taking the internal and external control to ensure that the judge’s active power could operate efficiently on the aspects of fact discovery, legal interpretation, application of law and judging method. From the perspective of the implementation of the trial mechanism and responsibility mechanism of the presiding judge, the boundary between the civil trial power and the trial management right should be delineated. In addition, the relationship and guidance form between the upper and lower court should be solved. The relationship among the protection of the party's right of privacy, judge's active power, social supervision and impartial referee should be dealt with. As a result, media supervision and public hearings in compliance with statutory procedures can be liberated.