摘要
民事判决始终可能出错,需要通过补正裁定制度更正其中的形式错误。在《民诉解释》出台后,我国仍应进一步完善补正裁定制度,避免实践中的滥用。德国法上对形式错误的补正分别针对显然错误和事实部分错误,在程序上前者可由原先判决的法院或者上诉法院随时依职权补正,后者只能由判决法院在一定期限内依申请补正。与德国制度大致相同,美国法和日本法也规定了判决错误补正制度。我国补正裁定制度应注意上述两种形式错误补正程序的差异。错误显然性应作为判决可以补正的标准,也要考虑补正便利和司法效率。补正裁定制度未来也应适用于案件诉讼经过记录中的错误。
To make a complete and correct decision is the basic requirement of the judicial branch in a legal system.However,a civil judgment can always be of errors and the clerical mistakes among them are supposed to be rectified by an order mandating such a correction.Despite the release of the Judicial Interpretation of Civil Procedure Law in 2015,in which the old rule related to this correction in the former judicial interpretation in 1992has been copied totally,this order is to be adopted prudently.To be studied in this article is the possible improvement of this order based on the similar institution from the perspective of comparative civil procedure law.The discretion of judges in this area should be controlled.Could this proceedings be started by the court sua sponte？Should there be any time limitation for the proceedings？Which situation belongs to the obvious error here discussed？When it comes to the unclear case,how could a later court identify the true will of the former court or judges in order to fulfill the correction？Should the efficiency of judicial process and the attitude of parties to the correction be taken into consideration？And lastly,could the error in the operative part of a judicial decision be rectified by the order here mentioned？ The methods of legal interpretation,legal empirical research as well as comparative law have been adopted in this article.To begin with,the traditional interpretation of law could help us clarifying the judicial rules related to this order mandating such a correction.Secondly,this article endeavors to discover the real legal practice in this area,namely how judges apply these rules in the real world.Thirdly,besides the research on the legal practice in China,an overview of the typical experience in foreign legal systems via first-hand materials is necessary as well.There are two types of the order mandating such a correction of the judicial decision in Germany,which are against the obvious errors and the inaccuracies relating to the facts and the merits of
作者
曹志勋
Cao Zhixun(Peking Universit)
出处
《武汉大学学报（哲学社会科学版）》
CSSCI
北大核心
2017年第4期70-79,共10页
Wuhan University Journal：Philosophy & Social Science
基金
国家社会科学基金一般项目(11BFX122)
关键词
民事判决
补正裁定
笔误
显然错误
本案事实
civil judgment
order mandating a correction
clerical mistakes
obvious mistakes
inaccuracies relating to the facts and the merits of the case（Tatbestand）
