论我国法官释明行为的规制-诉讼法学专业论文.docxVIP

Abstract Aufklaerung first appeared in the 1877 German Civil Procedure law. And it is a concept of the civil procedure theory of the civil law system. Though we already had studied on this issue more then ten years, it still was not systematically and not mature. Our country has wrong idea of the nature, the way of behavior and the subject of the behavior. We correct these wrong viewpoints and comprehend it afresh. Aufklaerung legislation in our country is absent. In the process of the transformation of the model of civil procedure, we should establish Aufklaerung system as soon as possible and conduct scientific and rational regulation to the behavior of Aufklaerung. Its necessity is that as an act of official authority, the special natural characteristic of Aufklaerung which easy to expand may do harm to litigant’s lawful right and interests; it is the inevitable request; it is the desirability of the condition of our country’s lawsuit practice. The regulation of the behavior of Aufklaerung is practical. Because the Right of action of litigants can constraint the judicial power of judge; The transformation of the model of civil procedure provides the regulation of the behavior of Aufklaerung a soil of system; And there are a lot of judges who have higher cultural quality and legal accomplishment in contemporary China, which offers the subject guarantee to the regulation of the behavior of Aufklaerung. The regulation of behavior of Aufklaerung should be considered at two aspects: macroscopic and concrete. The former contains that we should have a correct understanding of judge’s status and role, constraint the judicial power of judge through the exercising of the Right of action, can control the behavior by procedure specifications. The concrete regulation of behavior of Aufklaerung needs our efforts in principle, subject, the way, the content and modality. The regulation of behavior of Aufklaerung not only contains the limitation of the behavior itself, but also