法官释明权之理论阐释与立法完善

在百余年的发展历程中,法官释明权的功能已从救济弱势当事人演进到促进法官与当事人之间的沟通、避免突袭裁判的不意打击;到现代更发展为以达成共识为目的,促进当事人之间以及当事人与法院之间的共同讨论交流。法官释明权对促进实质正义与程序正义的实现有不可或缺的作用。完善我国有关的法官释明规范,是民事诉讼法修改的一项重要内容。

The Theoretical Explanation of the Judge's Power of Explication and Legislative Perfection

During the course of development for the past hundred years or so, the function of the judge’s power of explication has evolved from aiding the disadvantaged parties to promoting the communication between the judges and parties concerned, avoiding unexpected attacks of sudden judgments, to promoting joint discussions and exchanges between parties and between the parties and courts for the purpose of reaching common agreement in the present day. The judge’s power of explication plays an indispensable role in the realization of substantive and procedural justice. The perfection of the regulations on the judge’s power of explication is an important part for the modification of civil procedural law.