The Scope of the Court''s Elucidative Duty in Civil Procedure
Date Issued
2014
Date
2014
Author(s)
Huang, Fan-Hsuan
Abstract
The scope of the court’s elucidative duty is related to the issue of the task distribution in civil procedure between the parties and the court which is a topic that needs to be thoroughly discussed. Taiwanese Civil Procedure Law, which was influenced by German Law and Japanese Law, has shown a unique appearance after three times amendments in 1999, 2000, and 2003 (Hereinafter referred to as the “new Taiwanese Civil Procedure Law”). The new Taiwanese Civil Procedure Law is legislated on the concept of protection of the parties’ procedural subject and also made efforts in preventing the “surprising judgment” including the surprise in finding the fact, applying the law, and promoting the procedure. In other words, the new Taiwanese Civil Procedure Law provides the parties the chances to balance their substantive interests and procedural interests on their own as many as possible so as to make the disposition principle and adversary doctrine more sound and concentrated the trial. Thus, it strengthens the court’s elucidative duty and broadens its scope.
This thesis has five chapters. The first chapter is to clarify the motivation of the study and bring up questions. Chapter 2 and 3 is to make an observation over German Law and Japanese Law with regard to the scope of the court’s elucidative duty respectively so that it could serve as the reference resources while interpret the scope of the court’s elucidative duty of the new Taiwanese Civil Procedure Law in chapter 4. Then, chapter 4 will also compare the differences between the new Taiwanese Civil Procedure Law and German’s and Japanese’s in order to distinguish the uniqueness of the new Taiwanese Civil Procedure Law from German’s and Japanese’s.
Chapter 2 is to introduce the evolution of the court’s elucidative duty in German Law and make an induction of its types and the scope. Meanwhile, to study the relationships between the court’s elucidative duty and every principle in trail such as principle of disposition, adversary doctrine, iura novit curia, free evaluation, party autonomy principle, and neutrality of the judge. Although the German Law has been broaden the scope of the court’s elucidative duty such as acknowledge the duty from the legal aspect to certain aspect. However, compared to the new Taiwanese Civil Procedure Law, there still has difference in the scope of the court’s elucidative duty. Besides, since Taiwanese Law has different regulations to the German’s, we should be aware that the interpretation of German Law may not directly be used in Taiwanese Law.
Chapter 3 is to introduce the evolution of the court’s elucidative duty in Japanese. It is the right, not a duty, of the court to elucidate in Japanese Law. Therefore, the evolution of the court’s elucidative duty has been build up through the case law. In contraction with German Law, the scope of the court’s elucidative duty in Japan might be narrower and centrals in the elucidative duty of legal aspects. Besides, Japanese Law has been emphasizing the concentrated trail. And there is advocacy that the court and the parties should exchange information frequently so that the parties can make their claims more sufficient and sound.
Chapter 4 is the main chapter in this thesis and is to interpret the scope of the court’s elucidative duty of Taiwanese Law. It will start from the concept and types of the “surprising judgment” which Taiwanese Law is more detailed than its origin, German Law. Then, it will study the interpretation of the court’s elucidative duty in the area of disposition principle, adversary doctrine, and legal aspects and free evaluation. Also, there will be an analysis on the verdicts in Taiwan so as to clarify the scope of the court’s elucidative duty of Taiwanese Law. Finally, this thesis will show that the scope of Taiwanese court’s elucidative duty is broader than the one of German and Japan and this difference should be a result that we even emphasize in the balance or protection of the parties’ “procedural interests”.
The last chapter is to make a conclusive comparison between the differences in Taiwanese Law and the one of German and Japan. By doing so, we can clearly see how the theory of protecting procedural interests have its impact on the scope of the court’s elucidative duty and the exercise of disposition principle and adversary doctrine. Finally, since this thesis only discusses the scope of the court’s elucidative duty in civil procedure, there are still some topics need for discussion such as the differences between the scope of the court’s elucidative duty in civil procedure and that in family procedure and non-litigation procedure.
Subjects
程序主體地位
程序利益
突襲性裁判
聽審請求權
適時審判請求權
集中審理
當事人自己責任原則
法官中立性
處分權主義
辯論主義
協同主義
表明法律見解
公開心證
Type
thesis
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