On the Rectification of Clerical Mistakes in A Civil Judgment

 

Cao Zhixun （Peking University）

 

Abstract: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 1992 has 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 the case (Tatbestand) separately. The former errors can be fixed by the initial court or the appellate court sua sponte at any time, whereas the correction of the latter inaccuracies is only possible, when the initial court follows some time limit together with the will of one party. The United States and Japan have similar arrangement as well. Back in China, the difference of the two mentioned types of order is to be taken seriously. This development would contribute to the current judicial reform, in which the almost unrestricted judicial discretion could be controlled to a great extent and the study on the civil procedure law could be more delicate. The obviousness of the errors serves as a suitable test for the rectification, while a lot of courts have already adopted it as their own test. Because the devil is in the detail, published cases are reconsidered in this article, while some of them are in fact questionably dealed. Moreover, the convenience and efficiency of this correction are also to be taken seriously. The error in the operative parts of a judicial decision could also be corrected, especially when it refers to a calculation mistake. If parties have no will to make the judgment right, there is accordingly few need to correct it, because the scarce judicial resources have to be allocated optimally. Lastly, the error in the factual record is supposed to be handled independently. Therefore and in the future, these factual inaccuracies could be the additional subject of this order.

The innovation of this article is twofold. On one hand, it completes a systematical study on the written rule together with the real practice related to the order mandating a clerical correction in the United States and Germany. On the other hand, the rectification of the obvious errors in the real practice in China has been described on the basis of a collection of published cases.

 

Key words:civil judgment; order mandating a correction; clerical mistakes; obvious mistakes; inaccuracies relating to the facts and the merits of the case(Tatbestand)