释明的理论逻辑
严仁群释明的理论逻辑
Logic of Elucidation of Court
期刊名称：《法学研究》
期刊年份：
作者：严仁群
单位：南京大学法学院
中文关键词：释明;辩论主义;处分权主义;法官中立
英文关键词：logic of elucidation;the adversary doctrine;principle of disposition;court's impartiality
中文摘要：
释明有时会使案件结果发生逆转，所以必须有逻辑可循。释明不得背离保护权利、维护实质正义的释明主旨和其他正当目的，不能超出当事人主张的事实和已呈现的事实。此为释明的目的边界和事实边界。时效制度与释明制度之主旨相悖，所以不能就时效释明。在事实边界内，法官应进行一切合目的的释明，包括对当事人未主张的权利和重要事实的释明，原告的请求额不足时也应释明。法官就事实无法形成心证时应告知当事人追加证据。遵循逻辑的释明不会使法官丧失中立性。辩论主义并非绝对不可突破，也不能以尊重处分权为名漠视权利之丧失。
英文摘要：
Court's elucidation can sometimes change the result of a case, thus should follow its intrinsic logic. It may not violate the primary purpose of protecting right and vindicating justice and other reasonable purposes. Judges may not elucidate beyond the facts presented by the parties and actually displayed to court either. These are elucidation's boundaries on goal and fact. In the boundaries, judges may inform the parties all kinds of rights except for the right of defense on statute of limitation, otherwise the primary purpose of elucidation would be violated. In the factual boundary of elucidation, judges should give all kinds of elucidation corresponding to its proper aim. If the plaintiff claims less than he could get, judges can also tell him to amend his claim. When judges cannot be sure of what fact is, they can prompt both parties to produce more evidences. Although court's obligation of elucidation has made judges more active, elucidation has no positive connection with the partiality of the judge. If judges follow the logic of elucidation, they should not be censured. Elucidation is not exceptional, and judges can do it positively and widely as long as it doesn't deviate from its logic. Elucidation about new materials does not inevitably overstep the adversary doctrine or the factual boundary of elucidation. In some circumstances, judges should elucidate even when the party is represented by a lawyer.Most of the elucidation hasn't broken through the adversary doctrine, but it doesn't mean that the doctrine is absolute and cannot be broken. In the United States, the court should grant the relief to the party entitled, even if the party has not demanded that relief in his pleadings. This reminds us to review our thought on the disposition right of the parties. Limited by their legal knowledge, parties often do not claim some rights of their own and some important facts, so judges should inform them and let them decide whether to claim complementally. This is the true respect to the disposition right of the parties. We welcome that kind of activism which makes great efforts to realize substantial justice and procedural justice, and value parties as the subject of the procedure.
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