CAJ | 학술논문

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。
석명유시회사안건결과발생역전,소이필수유라집가순。석명불득배리보호권리、유호실질정의적석명주지화기타정당목적,불능초출당사인주장적사실화이정현적사실。차위석명적목적변계화사실변계。시효제도여석명제도지주지상패,소이불능취시효석명。재사실변계내,법관응진행일절합목적적석명,포괄대당사인미주장적권리화중요사실적석명,원고적청구액불족시야응석명。법관취사실무법형성심증시응고지당사인추가증거。준순라집적석명불회사법관상실중립성。변론주의병비절대불가돌파,야불능이존중처분권위명막시권리지상실。
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 iudge. 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.